09 Feb Privacy – High Court hears claim against Channel 5 over Can’t Pay? We’ll Take it Away!

A High Court Judge has this week heard the trial of a claim for misuse of private information by two individuals who were featured in an episode of the Channel 5 documentary series Can’t Pay? We’ll Take It Away!

The Claimants, Shakir Ali and Shahida Islam, had fallen into arrears on their rent, and were shown in the programme being evicted from their property by a High Court Enforcement Officer employed by Debt Collection Bailiffs Limited.

The programme showed Mr Ali coming to the door of the room he was using for his bedroom in his bed clothes, it showed the inside of the home, including the bedrooms and bathroom, and then showed the Claimants’ preparation to leave the property, and their departure, when they took their possessions to a waiting car.

The Claimants contended that the information about their home and family life shown in the programme gave rise to a reasonable expectation of privacy. They also said that they were confused at the time of the eviction, and felt ambushed by the bailiffs and film crew, and had not given their consent to being featured.

The Channel’s case was that the Claimants had given either full or partial consent to being filmed, and to the broadcast of the film. It also relied on the public interest in broadcasting the information relating to the work of High Court Enforcement Agents and the process of eviction that was featured in the programme.

The Judge will have to decide whether or not the Claimants did have a reasonable expectation of privacy in what was shown, and, if they did, whether the Claimants consented to its disclosure or whether their expectation was outweighed by the public interest in showing the information about them in the programme. If that question is resolved in favour of the Claimants, he will then have to assess damages.

The Judge has reserved his decision. If the claim succeeds, his ruling will be very significant for TV channels and production companies involved in making this type of programme. Firstly, the damages awarded could be very large, as the Courts’ attitude to compensation for infringements of privacy has shifted in the wake of the phone hacking litigation, and could potentially be assessed here by reference to the number of viewers, or the number of broadcasts of the programme.

Secondly, the use of the kind of footage featured in the programme has increasingly been seen as a cost-effective way to make compelling television in recent years. But if the Judge agrees with the Claimants, then the questions of the privacy rights of those featured in this kind of footage, and the extent to which they consent to appearing in any programme made with it, will become more challenging.

Producers and broadcasters are likely to be more accustomed to individuals bringing complaints to Ofcom for unwarranted infringements of their privacy, alleging breach of section 8 of the Ofcom Broadcasting Code, rather than suing in the courts.  As this case shows, complainants can do either, or both, if they wish (and the case is suitable).  Whilst there are significant risks associated with pursuing litigation – principally having to bear the other side’s legal costs as well as your own if you lose – there are potential remedies which are unavailable when pursuing regulatory complaints – Ofcom has no power to award damages.  Suing through the courts offers complainants the potential for significant financial compensation for the wrong suffered, if successful.
zoom-in will report the Court’s decision as soon as it is made public.