Tag Archives: [2018] EWHC 298 (Ch)

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.