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Law Column: Easter gifts from the Law Courts

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The Easter Legal Bunny arrived early at the Royal Courts of Justice in the run up to Easter, with the five media judgments being delivered in a short space of time  – four on the same day!

The cases dealt with some of the trickiest legal issues around – meaning, “serious harm”, privacy, identification, and an interesting problem as to whether a claim against the National Trust for Scotland should proceed in England or Scotland.

But because of its relevance to working journalists, who now use video footage all the time, the judgment which caught my eye was from the Court of Appeal arising from a fly-on-the-wall documentary broadcast by Channel 5.

The Claimants were a married couple who had fallen into rent arrears.  Their landlord wanted to evict his tenants from the property and so he obtained an order for possession, which he then decided to enforce through a High Court Enforcement Officer.  When the enforcement agents turned up at the property, they were accompanied by a film crew who recorded what happened.  Channel 5 duly broadcast the footage as part of its “Can’t Pay? We’ll Take It Away” series.

When the case came before Mr. Justice Arnold in the High Court, he held in favour of the tenants and awarded each of them £10,000. Whilst the Judge accepted that the programme was broadcast in the public interest, he said that the inclusion of the footage of the eviction was private information which went beyond what was justified for that purpose.

The tenants appealed on the ground that the damages were too low, and Channel 5 cross-appealed against the finding of liability.

Channel 5 began its cross-appeal by accepting the basic principles of privacy law: the tenants had a reasonable expectation of privacy, and the Court’s job is to carrying out a balancing exercise between the tenants’ privacy rights and the broadcaster’s right to freedom of expression. So far, so uncontroversial.

But where Mr. Justice Arnold went wrong, they said, was that in carrying out the balancing exercise, he had gone beyond what was justified and had made an error of law. Funnily enough, the tenants argued that he had interpreted the law absolutely correctly.

The Court of Appeal came down on the side of the tenants and dismissed Channel 5’s appeal.

They did so for three reasons; first, Mr. Justice Arnold had paid due regard to the competing legal principles; second, in carrying out the balancing exercise, he had attached sufficient weight to all the competing public interest issues; and third, the Judge had taken a reasonable view of the evidence and it was not for the Court of Appeal to interven, even though other judges might have reached a different conclusion.

Importantly, both the trial Judge and the Court of Appeal explicitly confirmed that when carrying out the balancing exercise between privacy rights and freedom of expression rights, “a court must give full weight to editorial knowledge and discretion and be slow to interfere

So what does this decision mean for journalists? In one sense, not that much, because cases dealing with privacy v. freedom of expression are invariably fact-specific.  But the repeated emphasis of the importance of “editorial knowledge and discretion” is very much to be welcomed.

Moving on, what happened to the tenants’ appeal on damages? Without hesitation, the Court of Appeal decided that there was nothing wrong with the level of damages they had been awarded by the trial judge.

The Court made two key points: first, there is a distinction to be made between wrongdoers who maliciously disclose private information and those who infringe privacy rights in good faith; and second, when a breach occurs in good faith, there should be a reduction to the damages for distress because “the impact of deliberate illegality should be regarded as greater and more distressing.”

One legal commentator has said that the Court of Appeal’s decision is not the death knell for “fly on the wall” documentaries, and I agree.

But as ever, anyone who is considering using any material (whether information, photos, or video footage) where the privacy rights of individuals are engaged needs, to exercise great care and deliberation.

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