23 Feb PRIVACY: CAN’T PAY TO PAY UP – PROGRAMME HELD TO BREACH PRIVACY RIGHTS

Channel 5 will pay £20,000 in damages in connection with an episode of Can’t Pay? We’ll Take It Away! after the High Court found it was a misuse of the private information.

Mr Ali and his wife Mrs Aslam were evicted from the home they shared with their two children in Barking in April 2015. The High Court Enforcement Agents (commonly referred to as bailiffs) who carried out the eviction were accompanied by a film crew from an independent production company, filming for the Channel 5 series. The story was shown in an episode of the show first aired in August 2015 and subsequently repeated 35 times, as well as being available on Channel 5’s on demand service. In total it was viewed over 9.65m times.

Mr Ali was filmed emerging drowsily from the room he was using as his bedroom in his nightclothes. The couple were shown in distress, packing their belongings and being berated by their landlord’s son. The inside of their home including bedrooms and bathroom was shown. The couple had expected to be given further time to vacate the property. Indeed, it emerged they were told by the Council’s housing department that if they left the property before they were evicted they would be regarded as ‘intentionally homeless’ and would not be rehoused. The couple’s children, although not shown the in programme had also suffered as a result of it, in particular the couple’s daughter was bullied at school.

The judge found the couple had a reasonable expectation of privacy in their home, even though they were being evicted from it. Channel 5 had argued that the couple were trespassers, as the landlord had already obtained an order for possession from the court – but the legal position is that they were tenants until the writ of possession was executed (i.e. until they were evicted). In any event, a property can be a person’s ‘home’ in Article 8 privacy terms, regardless of the position in property law. The judge found the house was their home for these purposes until they left it.

Channel 5 also made an analogy between showing the bailiffs executing the writ of possession and court reporting, relying on the ‘open justice’ principle. However, the judge rejected this. Whilst the Channel could legitimately have broadcast the fact of the writ of possession or the fact of the eviction, this did not mean it was justified in broadcasting the inside of the couple’s home and them in distress during the eviction as they were being taunted by their landlord.

Channel 5 also relied on social media posts by the landlord and his son, who had filmed parts of the eviction on a mobile phone and posted short clips online. They were viewed by somewhere between a few dozen and a few hundred people. The Claimants had complained about these posts before Channel 5 first broadcast the programme. The judge accepted what Mr Ali said when asked about it in court – that there was no comparison between the impact of a few hundred people watching postings on social media and 9.65 million watching a television programme.

Channel 5 had argued that the couple consented to being filmed and that material being broadcast, and that the broadcast was in the public interest.

The judge found the couple had not consented to being filmed, and were not in fact told what the filming was for, despite the show’s production bible requiring them to do so. At one point a member of the film crew started to explain, but was stopped by the bailiff. As could be seen from the rushes, at various points both Mr Ali and Mrs Aslam objected to being filmed. When Mr Ali finally agreed to briefly answer some questions from the film crew, this was ‘the lesser of two evils’ in that otherwise the programme was likely not to include anything of his side of the story, in particular as the landlord had made serious allegations about them. Further he had later telephoned the television production company and made clear he objected to being on television.

As to the public interest, it was accepted that there was a public interest in the general subject matter of the programme: debt, rent arrears, and what happens when bailiffs execute writs of possession. Channel 5 argued that it was entitled to illustrate these matters with the stories of real people in real situations, as this is the best way to engage viewers and stimulate debate. However, the judge found that the use of the Claimants’ private information went beyond what was justified for the purposes of the public interest. The focus of the programme was not on matters of public interest, but on the drama of the conflict between the couple and their landlord, conflict that was encouraged by one of the bailiffs, Mr Bohill in order to ‘make good television’. For example at one point he encouraged the landlord to ‘give it some wellie’. Although it was argued by the Claimants, the judge did not conclude that the programme was materially unfair or inaccurate in its presentation of events.

The judge awarded Mr Ali and Mrs Aslam £10,000 each in damages, having found that the broadcasting of the programme caused the couple distress. He said he would have made a higher award had it not been for the online postings by the landlord and his son. The ruling has implications not only for Can’t Pay? We’ll Take It Away, but for all programmes using a similar method of filming officials (whether public or private) going about their business and the people they interact with. Those making programmes of this type may wish to review their procedures.

This is the second time in recent months that Can’t Pay? We’ll Take It Away has come under scrutiny from a privacy perspective. As we reported in the Winter 2017 issue of zoom-in magazine (https://abbasmedialaw.com/zoom-in-magazine/zoom-issue-8 at page 10), Ofcom found that another Can’t Pay? programme had amounted to an unwarranted infringement of privacy of a complainant – a ‘Miss F’.