Can’t Pay? We’ll Take it Away – privacy complaints upheld

Ofcom has upheld a complaint of infringement of privacy made by Miss F on behalf of herself and members of her family which related to an episode of Can’t Pay? We’ll Take it Away, broadcast on Channel 5 on 20th April 2017.

Miss F was a student nurse living with her parents. A court judgment was made against her for an unpaid debt, enabling enforcement officers to attend her home to itemise property for seizure in lieu of the debt.

The programme makers filmed with the enforcement agents as they attended where Miss F lived.  The crew filmed outside the property with a handheld camera; the enforcement officers also filmed inside the property using body cameras which had been supplied by the programme makers.

The episode broadcast body camera footage of sensitive conversations between Miss F and her family (her uncle and her father) regarding her financial situation in which she was visibly distressed; interaction with the enforcement officers; and the interior of the family home.

Miss F complained that her privacy, and the privacy of both her uncle and father, who were filmed and included in the programme as broadcast (unblurred) had been unwarrantably infringed.
Miss F also complained on behalf of her mother – whilst her mother had not personally been filmed, her mother’s bedroom had and footage of it included within the broadcast programme.

Channel 5 defended the programme arguing, in relation to each family member, that if privacy rights were at play at all, any expectation of privacy was outweighed by Channel 5’s right to freedom of expression and the public’s right to receive information concerning matters of public interest. In other words, the public interest in the story trumped privacy rights.

Ofcom investigated and, in its First Preliminary View, decided that the complaint should not be upheld.  However, following representations from Miss F on this preliminary view, Ofcom requested further information from Channel 5 about the nature of the arrangement between the programme makers and the enforcement agents.  Following the provision of this information, which included clarification that the body cams worn by the enforcement officers belonged to the programme makers, Ofcom changed its mind.  Having reconsidered the matter, Ofcom issued a second Preliminary View, this time finding that the complainants’ privacy had been unwarrantably infringed.

Ofcom found that Miss F and her family all had a legitimate expectation of privacy in relation to both the filming and the broadcast of the material, and that this had been unwarrantably infringed i.e. was not justified by the broadcaster’s rights to freedom of expression and the public interest.

Ofcom considered the nature of the filming on the body cams worn by the enforcement agents and owned and controlled by the programme makers.  Interestingly, Ofcom found that because the camera crew (who were filming with hand-held cameras) had withdrawn to the street, and because Miss F and her family had not been told that the body cams worn by the agents were owned and controlled by the programme-makers and were capturing footage potentially for broadcast, the filming on these body cams amounted to secret filming.

On the facts, Ofcom considered the filming to being akin to the programme makers deliberately continuing to record when the party being filmed thought filming had come to an end; and also that it was akin to the programme makers leaving an unattended camera or recording device on the property without consent.  Both these practices are explicitly stated in the Ofcom Broadcasting Code as practices amounting to secret filming.

Channel 5 argued that even if the footage was deemed to be secret filming, the filming and the broadcast of the material was justified by the public interest.  However, Ofcom disagreed, finding that whilst the existence of a county court judgment may be considered a matter of public record, and therefore not information in itself that Miss F might have a reasonable expectation of privacy in, the information captured and broadcast by the filming of Miss F (and her family) by the body cams in her home went beyond the fact of her debt, and concerned the impact of the debt enforcement process on Miss F and her family.

In summary, Ofcom found that Miss F and each of the family members she complained on behalf of did have a reasonable expectation of privacy in relation to both the filming and the broadcast of the footage, that the intrusion into their private lives by both activities had been significant, and that, balancing the competing rights, this was not justified by rights to freedom of expression and the public interest.

This is a significant decision by Ofcom but not one which is fatal to the use of body worn cameras in programme-making.  In the Winter issue of zoom-in, published on 1 December, we will include practical guidance based on this decision for programme makers who use body cameras when making programmes.