25 Apr PRIVACY – COURT OF APPEAL UPHOLDS JUDGMENT IN CAN’T PAY? WE’LL TAKE IT AWAY! CASE

The Court of Appeal judgment in the Can’t Pay? We’ll Take it Away! case, leaves the position unchanged. As we previously reported Mr Ali and his wife Mrs Aslam brought the case over an episode of the programme in which they were shown being evicted from their home, which was viewed 9.65 million times. The broadcast was found to be a misuse of their private information, and they were each awarded £10,000 damages. The judge said he would have made a higher award had it not been for short videos of the eviction posted by the Claimants’ landlord on social media which were seen by at most a few hundred people.

The Claimants appealed the size of the damages awards, saying they were clearly too low, failing to bear a reasonable relationship to the scale and nature of publication, and to the distress caused. Another ground of appeal was that the judge was wrong to take into account the social media videos, a third that the judge failed to consider the distress caused to the Claimants by the impact on their children, who had been bullied as a result of the programme.

Channel 5 cross-appealed on liability, saying that the judge failed to give proper weight to its editorial discretion, which it said extended to the decision to include the Claimants’ private information in the programme, which had been found to be on a topic of public interest.

The Court of Appeal dismissed both appeals. On liability the Court accepted that the public interest in the programme went beyond the High Court enforcement process, also encompassing debt, benefits which are insufficient to cover rent and the consequences to families. However, the Court was satisfied that the judge had in mind all the relevant principles, such that the appeal court should not interfere.

On damages, whilst the Court of Appeal accepted that another judge might have given a higher award, as the judge had not made any fundamental error, the damages award should be left unchanged.