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Law Column: Videos, ‘Observational Documentaries’ and £20,000


In a judgment which has implications for all journalists, Mr. Justice Arnold last week ruled in favour of a couple who sued Channel 5 for filming their eviction as part of the series “Can’t Pay? We’ll Take It Away”, and awarded them damages of £10,000 each.

In what one commentator called an ‘observational documentary’ (fly-on-the-wall telly to the rest of us), Channel 5 broadcast the programme in April 2015 which showed the couple and their two children being evicted from their rented flat for non-payment of rent.

The couple sued the broadcaster for compensation for misuse of private information, distress, and aggravated damages (not only for the original incident, but also for its conduct in the ensuing claim).

Remarkably, the programme included images of the husband in pyjama bottoms and a vest, the couple’s bedroom, their children’s rooms, and family possessions in bags.

To make matters worse, the show included footage of the landlord’s son criticising the couple and accusing the husband of being a “conman”; it disclosed various details about the couple; and it recorded one of the eviction officers telling the landlord to provoke the tenants: “just give it some wellie”.

Hardly surprisingly, His Lordship was not impressed. In a long and detailed judgment running to 60 pages or so, the judge decided that the couple had a reasonable expectation of privacy, which Channel 5 had not respected: “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 [the landlord’s son]; and it was foreseeable that the broadcasting of the programme would have an adverse effect on their children”.

The judge decided that the programme was not materially unfair or inaccurate to the couple, but he then added that neither of those matters assisted the broadcaster.

As a result, the judge came down in favour of protecting the couple’s right to private and family life, over Channel 5’s right to freedom of expression. In his words, he balanced the two competing principles, and on the facts, came down in favour of the individuals and their right to privacy.

You might think that this judgment is only relevant to the producers and broadcasters of reality TV shows. And in the old days, this probably would have been the case.

But of course, with the video content being at the heart of modern reporting, the issues of privacy, respect for family life, and misuse of private information cannot be ignored by journalists across the board, and especially by those who work for online publishers.

As to the level of damages, Mr. Justice Arnold gave a useful resume of the law. After reminding us that compensation for misuse of private information may be awarded even if it does not cause distress, he then set out the principles which have to be applied when calculating compensation.

In this instance, he placed reliance on the fact that the wrongly disclosed information was “fairly sensitive“, and even more on the fact that the programme had a “voyeuristic quality“.

It’s common for the police to invite journalists to join them on raids of the homes of drug dealer, burglars, and other suspected criminals. Usually, the reporters follow officers into the flat or house, and film what they see.  Most journalists know how far they can go when it comes to filming a suspect, and until now, obscuring the arrested person’s face, at least prior to conviction, has been sufficient.

Does this decision change anything? Probably not, given the facts of the case.

But it’s clear reminder that if you publish too much personal information, you could well end up in hot water which sees you and your employer on the receiving end of a hefty damages award.

And as ever, you cannot ignore the legal costs.