Tag Archives: Private and Family Life

Privacy v Freedom of Expression: ‘Can’t Pay? We’ll take it away’

Yesterday an interesting privacy judgment was handed down in the English High Court by Mr Justice Arnold.  The Claimants, Shakir Ali and Shahinda Aslam, brought proceedings against Channel 5 Broadcast Limited (“Channel 5”) for breaching their privacy in using footage of their eviction in the defendants’ television programme, ‘Can’t Pay?  We’ll take it away’.

‘Can’t Pay?  We’ll take it away’ is an observational documentary series broadcast by Channel 5 which follows the work of High Court Enforcement Agents.  The programme often features the evictions of tenants from residential premises by High Court Enforcement Agents and these agents pursuing debtors for the recovery of monies owed to their clients.  At Paragraph 58 of his judgment, Mr Justice Arnold states that the production company “wanted to show how the process which courts provided for the enforcement of debts and the reclaiming of property from debtors and tenants actually operated within ordinary peoples’ lives. He particularly wanted to show how landlords and creditors could expedite enforcement by moving the process from the County Court to the High Court, and the effect of this.”

The Claimants argued that they had a reasonable expectation of privacy and that this had been breached.  Meanwhile, the Defendants argued that the Claimants did not have a reasonable expectation of privacy.  Alternatively Channel 5 argued that if the Claimants did have a reasonable expectation of privacy, that was defeated by the Defendants’ rights to freedom of expression when the two were balanced against one another.  Channel 5 was responsible for selecting which enforcement actions that were filmed for the programme would actually appear in the television series.

On the day of the eviction, the Claimants were visited by two High Court Enforcement Agents; one of whom was in training and the other, Mr Paul Bohill, had more than 30 years’ experience as a High Court Enforcement Agent.  Only the first claimant was in the property when the Agents, together with a television film crew, arrived at the property to effect the eviction.  Certain information was supposed to be provided to those being filmed but the evidence proved that Mr Bohill actively prevented that information being given to the Claimants, even when the first claimant enquired about why it was being filmed.  Mr Justice Arnold covers the events of the eviction of the claimants, in detail, in paragraphs 70 – 115 of his judgment.

On 17th June 2015 the first claimant contacted the production company objecting to footage of his eviction being used in the television series.  He was told that they [the production company] needed to get their facts straight with regards to his benefits, but that his objections would be passed onto Channel 5 who made decisions about broadcast.

At paragraph 169 of his judgment, Mr Justice Arnold states that in his “judgment the principal factors relied upon by the Claimants do lead to the conclusion that they had a reasonable expectation of privacy in respect of the information in question. The Programme was largely filmed in their home; it showed them being evicted without prior warning; it showed them in a state of shock and distress; it showed them being taunted by Omar Ahmed; and it was foreseeable that the broadcasting of the Program me would have an adverse effect on their children. I do not accept that the open justice principle means that the Claimants’ Article 8 rights were not engaged. Open justice means that Channel 5 was entitled to report the facts that the courts had made the Order for Possession and issued the Writ of Possession and in consequence the Claimants had been lawfully evicted; but what happened in their home on 2 April 2015 was not part of the proceedings. Nor do I consider that the broadcasting of the information was an inevitable consequence of the Claimants’ failure to comply with the Order for Possession. Nor do I accept that Mr Ali’s Article 8 rights were  significantly weakened by his political activity.  Mrs Aslam had not engaged in political activity at all. I accept that the Claimants, and their children, had already suffered damage to their privacy as a result of the Ahmeds’ postings on social media, but I do not accept that this meant that the broadcasting of Programme either could not or did not inflict further damage given the substantial scale and duration of the broadcasting.”

In respect of the argument advanced on behalf of Channel 5, that Mr Ali had consented to being filmed, Mr Justice Arnold states that the consent was not “true consent”, was “an agreement to participate under protest” and “was not fully informed agreement given that he was not told anything about the programme that was being filmed or who would broadcast it or about the body cameras.” (paragraph 177).  In any event, Mr Justice Arnold held that “to the limited extent that he did give consent on 2 April 2015, he unequivocally withdrew that consent prior to the first broadcast of the Programme.” (paragraph 178).

Having found that the Claimants did have a reasonable expectation of privacy, it became necessary for the court to balance that against Channel 5’s rights to freedom of expression.  There was no dispute that there was a genuinely held belief by the production company and channel 5 that the programme was in the public interest; however, there was a dispute between the parties as to whether that was enough or whether it had to be assessed objectively.  Mr Justice Arnold concluded that it was clear that the court had to assess it objectively.

Channel 5 argued that “the programme addressed a number of matters of real public interest and concern: increasing levels of personal debt, and in particular rent arrears of tenants in privately-rented accommodation; the dependence of tenants on benefits, and in particular housing benefit; the effect of enforcement of writs of possession by HCEAs; and the consequences for both landlords and tenants. He further submitted that it was justified for Channel 5 to illustrate these matters by showing what happened to real people in real situations, because that was the best way to engage the public and stimulate debate.”

At paragraph 195, Mr Justice Arnold concludes that “the Programme did contribute to a debate of general interest, but…the inclusion of the Claimants’ private information in the Programme went beyond what was justified for that purpose…The focus of the Programme was not upon the matters of public interest, but upon the drama of the conflict between Omar Ahmed [the landlord] and the Claimants. Moreover, that conflict had been encouraged by Mr Bohill…”

Mr Justice Arnold ultimately concluded that when balancing the rights of the Claimants to a private and family life against Channel 5’s rights to freedom of expression, the balance came down in favour of the Claimants’ Article 8 rights.  Each claimant was ultimately awarded £10,000 in damages.

This case raises a number of questions about similar style programmes regularly broadcast on television in the United Kingdom.  It is possible that Channel 5 might face claims from others featured in ‘Can’t Pay?  We’ll take it away’ arising out of the publicity that this judgment has received.  Of course, Channel 5 might well decide to appeal the decision; however, in the meantime broadcasters who broadcast similar style programmes and the production companies who make them ought to reflect upon the decision in the meantime and take it into account when making decisions about programming content of that nature.  It is clear that individuals in these situations do have a reasonable expectation of privacy.  There will be circumstances where the broadcasters’ freedom of expression will defeat the privacy rights of the individuals; however, there will need to be a genuine attempt to cover matters of public interest.  If it is simply for the prupose of entertainment, then broadcasters could find themselves being sued for breach of privacy if they do not have informed consent from the individuals featured (or do not take steps to protect the identities of those featured).

Alistair Sloan

If you would like advice or assistance in respect of a privacy/data protection issue or any other information law matter then contact Alistair Sloan on 0345 450 0123 or send him an E-mail.

Privacy and the Monitoring of Communications in the Employment Setting

On 5th September 2017 the Grand Chamber of the European Court of Human Rights issued its decision in the case of Bărbulescu v. Romania, which considers the application of the right to a private and family life contained in Article 8 of the European Court of Human Rights to the monitoring of a person’s communications by their employer.

The background to the case is that an employee was dismissed by his employer for making use of company equipment and services (internet connection and computer) for personal purposes during working hours; in particular, he had been sending personal messages (some of which were of an “intimate nature”) to his brother and fiancée.  The company’s internal policies prohibited this use and after following the disciplinary process required by Romanian domestic law, he was dismissed.  He brought a case in the domestic courts and was unsuccessful in all of those courts.  He then brought a case before the European Court of Human Rights which ultimately ended up with the Grand Chamber issuing its decision on 5th September 2017.  The procedural background to the case is more fully set out in the Court’s judgment.

The Court stated that the relationship between an employee and their employer “is contractual, with particular rights and obligations on either side, and is characterised by legal subordination.” (paragraph 117) The court went on to state, at paragraph 118, that “labour law leaves room for negotiation between the parties to the contract of employment.  Thus, it is generally for the parties themselves to regulate a significant part of the content of their relations.”

In terms of the margin of appreciation afforded to States under the European Convention of Human Rights, the Court decided, at paragraph 119, that States “must be granted a wide margin of appreciation in assessing the need to establish a legal framework governing the conditions in which an employer may regulate electronic or other communications of a non-professional nature by its employees in the workplace.”  However, the Court went on to state, in paragraph 120 of its judgment, that “the discretion enjoyed by States in this field cannot be unlimited.  The domestic authorities should ensure that the introduction by an employer of measures to monitor correspondence and other communications, irrespective of the extent and duration of such measures, is accompanied by adequate and sufficient safeguards against abuse.”  These adequate and sufficient safeguards, the court stated at paragraph 121, “are essential.”

The Court sets out five factors which it considers domestic authorities should treat as being relevant:

  1. What notification has been given to the employee regarding the possibility that the employer might take measures to monitor their correspondence and other communications, and what notification the employee has been given regarding the implementation of these measures;
  2. The extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy (a distinction should be drawn between simply monitoring the flow of communications and the monitoring of the content of the communications);
  3. The reasons the employer has provided to justify the monitoring of their communications and their actual content – greater justification will be required for monitoring the content as opposed to just the flow;
  4. Whether it would have been possible for the employer to have in place a monitoring system that was based on less intrusive methods and measures than simply directly accessing the content of the employee’s communications;
  5. The consequences of the monitoring for the employee subjected to it, and the use made by the employer of the results of the monitoring operation, in particular whether the results were used to achieve the declared aim of the measure;
  6. Whether there were adequate safeguards in place; especially when the employer’s monitoring operations are of an intrusive nature.

This case makes it clear that it can be legitimate for an employer to monitor, not only the flow of private communications made by an employee on company systems, but also the actual content of the correspondence.  However, employers do not have an unlimited right.

Employers will have to think carefully about what aims they are trying to achieve by the monitoring of communications by employees on company systems and whether their proposed method of monitoring is proportionate with that aim.  Furthermore, employees should be given clear and fair notice of what monitoring is taking place and the purpose for the monitoring.

Employers will also need to give careful consideration to the safeguards that they need to have in place with regards to the monitoring procedures they have in place and ensure that what safeguards they do have in place are adequate.  With regards to safeguards, the court specifically stated that employers should not have access to the actual content of the correspondence concerned unless the employee has been notified in advance.

The court has also said that domestic authorities should ensure that any employee whose communications have been monitored has access to a remedy before a judicial body and that judicial body should have jurisdiction to determine, at least in substance, how the six criteria set out in its judgment have been observed and whether the impugned measures were in fact lawful.

This decision doesn’t really change the law as it already operated.  The decision does not prevent employers from undertaking the monitoring of communications by their employees on the employer’s systems.  However, the decision does act as a useful reminder that the ability to conduct such monitoring activities is not wholly unrestrained.  The decision, coupled with the forthcoming applicability of the General Data Protection Regulation, may well provide a good opportunity for employers to review their policies in this area to ensure that they are compliant with the law.

Alistair Sloan

If you would like advice on a matter concerning data protection or privacy, then you can contact our Alistair Sloan on 0345 450 0123 or by completing the contact page on this blog.  Alternatively, you can send him an E-mail directly.