Monthly Archives: April 2019

Privacy v Freedom of Expression in the Court of Appeal

Last year, Mr Justice Arnold gave judgment in the interesting case of Ali & Aslam v Channel 5 Broadcasting. This case concerned the fly-on-the wall programme broadcast on Channel 5 called “Can’t Pay? We’ll take it away”; which follows the work of High Court Enforcement Officers as they enforce court orders relating to debt and housing matters. Mr Justice Arnold found Channel 5 to be liable to the Claimants in the sum of £10,000 each; holding that the Claimant’s rights to privacy outweighed the rights of Channel 5 in respect of freedom of expression and the public interest.

Both parties appealed to the England and Wales Court of Appeal; Channel 5 on the issue of liability and the Claimants on the grounds that the damages awarded were insufficient. In a judgment given on 16th April 2019, the Court of Appeal (Irwin LJ, Newey LJ and Baker LJ) refused both appeals.

The Court of Appeal addressed the issue of liability first, before dealing with the appeal on quantum (the amount of damages awarded). The issue for the Court of Appeal was whether Arnold J had gone beyond what was justified in balancing the Claimants’ rights to privacy against Channel 5’s rights to freedom of expression; and as a consequence had made an error of law. The Court of Appeal held that Arnold J had taken “too narrow a view of what was in the public interest, effectively confining it to the High Court Process.” [74] The Court considered that Arnold J was wrong to conclude “that the publication of each specific piece of information in respect of which the Claimants had a legitimate expectation of privacy had to be justified as a matter of general public interest.” [74]

An interference with privacy which cannot be justified (logically or rationally) by reference to the public interest served by publication cannot be rendered lawful by editorial discretion. However, where there is a rational view by which publication can be justified in the public interest the courts should be slow to interfere, giving full weight to editorial discretion and knowledge.

Despite having some reservations about the treatment of the public interest issues in the judgment from Arnold J (in particular, the narrow approach taken to the public interests issues which arose), the Court refused the cross-appeal by Channel 5. The court had three principal reasons for doing so, set out in paragraphs 92-94 of its judgment. Those can be summarised as follows:

  1. Arnold J was clearly well aware of the relevant legal principles set out in the applicable case law.
  2. The Court of Appeal was satisfied that Arnold J was fully aware of the range of public interest issues raised in the programme; and
  3. The Court of Appeal was satisfied that while another judge might have reasonably found against the Claimants, it was not unreasonable for Arnold J to have found in their favour.

Turning to the appeal on damages, the first ground of appeal advanced essentially amounted to one that the level of damages awarded to each Claimant did not reflect the scale and nature of the publication. The second ground is that the judge was wrong to take into account the publication of the postings by the Ahmeds when setting the awards of damages for the publications by the Defendant. The third ground is that the judge wrongly failed to take into account the impact of the programme on the Claimants’ children.

All three grounds of appeal in respect of quantum were refused by the Court of Appeal. In respect of ground 2, the Court of Appeal noted that “[i]t must be obvious that the distress attributable to the programme was reduced because a number of people within the Claimants’ community or network were already aware of the broad events from the postings”. In respect of ground 3, the Court of Appeal considered that Arnold J had taken into account t he potential impact on the Claimants’ children.

On ground 1, the Court of Appeal distinguished against damages awarded in the case of phone hacking and the present case. They did so on the basis that in t he hacking cases those responsible for the hacking knew full well what they were doing was illegal; however, in the present case Channel 5 had taken steps to ensure that they remained within the law; including obtaining expert legal opinion. Furthermore, in the circumstances it was appropriate for Mr Justice Arnold to make an award of damages in the round.

There is some helpful guidance from the Court of Appeal on the issue of quantum in respect of breaches of privacy in the media sphere. In assessing quantum it is possible to look at issues in the round and reach a global figure of damages, rather than awarding damages identifiable to each issue. Furthermore, damages for cases of this kind cannot be calculated mathematically. Finally, an appellate court should not seek to interfere with an assessment as to quantum unless the damages awarded are so high or so low as to be perverse.

Alistair Sloan

If you would like advice or assistance in connection with a privacy issue, or any other information law matter; contact Alistair Sloan on 0141 229 0880. You can also send him an E-mail.

True Vision Productions & Bounty UK

The Information Commissioner has recently served two Monetary Penalty Notices (“MPNs”) that are worthy of some note. They were both issued for breaches which occurred prior to 25 May 2018 and are therefore both under the Data Protection Act 1998. This means that the maximum penalty in both cases was £500,000, rather than the larger penalties under the General Data Protection Regulation.

The first MPN [pdf] of the two MPNs that will be discussed in this blog was served on True Visions Productions (“TVP”) in connection with filming undertaken in a maternity unit operated by Cambridge University Hospitals NHS Foundation Trust (“CUH”).

Between July 2017 and 29 November 2019 TVP had placed static CCTV-style cameras with audio recording capabilities within three out of the four assessment rooms at the maternity unit. This was to gather footage for possible use in a television documentary on still births. The Commissioner accepted that there was a public interest in documentaries of this nature; however, she found that TVP had breach the first data protection principle in Schedule 1 to the Data Protection Act 1998.

TVP had not done enough to ensure that they had the explicate consent of those being filmed and there appeared to be no way for CUH staff to turn the cameras off. Therefore, if anyone did not wish to be filmed they would need to be seen in the one room without cameras; if that room was unavailable then the patient would have no choice but to be filmed. The fact that no human had access to the footage without first having the consent of the patient was insufficient: the recording and temporary storage of the footage was processing of personal data and would have required the Schedule 3 condition of explicate consent. Very little was done to bring the filming to the attention of patients; CUH staff were only required to answer questions if asked and there were notices placed in the premises along with information on tables; however, these were inadequate. TVP was served with a MPN in the amount of £120,000.

The second MPN of note is one served on Bounty (UK) Ltd in the amount of £400,000 [pdf]. Bounty UK gives itself the description of being a pregnancy and parenting support club. It provides information and markets services (including offers) to parents at different stages from pre-conception to pre-school. As part of this it distributes packs to new parents. The company also operates as a data brokering service and had previously also supplied data to third parties for the purpose of direct marketing by electronic means (although this apparently ended on 30 April 2018). Bounty collected personal data for the purpose of registering new members and did so in a number of ways, including directly from new mothers at their hospital bedsides.

Bounty had shared personal data with a range of organisations including a credit reference agency, a marketing and profiling agency and a telecommunications company; all for the purposes of direct marketing by electronic means. This related to about 14,300,000 unique individuals. Each record could be shared on multiple occasions. This was, apparently, all done on the basis that Bounty had obtained consent from the data subjects concerned.

The Commissioner found that Bounty had failed to comply with the fairness requirement within the first data protection principle in Schedule 1 to the Data Protection Act 1998. Bounty had not been transparent enough in providing information about the purposes for which personal data would be used. Bounty failed to process personal data fairly because they did not adhere to individual’s reasonable expectations of how their personal data would be used.

The consent apparently obtained by Bounty did not meet the requirements of the Data Protection Act 1998; it was neither specific nor informed.

Of course, both Bounty (UK) Limited and TVP have a right of appeal against the MPNs issued to them (both in terms of the decision to impose a penalty and the amount of that penalty). It remains to be seen whether either will seek to appeal to the First-Tier Tribunal.

Alistair Sloan

We are able to assist with a wide range of privacy and data protection matters. If you would like advice or assistance on these issues, or any other information law matter, contact Alistair Sloan on 0141 229 0880 or by E-mail. You can also follow our dedicated information law twitter account