BKM Ltd v British Broadcasting Corporation [2009] EWHC 3151 (Ch) (02 December 2009)
In a case concerning the relationship between the right to freedom of expression of media agencies and the right to privacy of nursing home residents, the England and Wales High Court has conducted a balancing exercise and found that the public interest in the case favoured the right to freedom of expression.

Facts

Glyndwr Nursing Home is an aged care home in Wales run by BKM Ltd.  As part of a proposed television program regarding care standards in aged care homes, the BBC in Wales sent a reporter undercover into Glyndwr as a care worker.  During this time, secret filming of the treatment of residents at the home was taken, which revealed (among other things) inappropriate lifting techniques, inadequate privacy for residents being bathed and failure to follow hygiene guidelines.

BKM brought an application before the England and Wales High Court to restrain broadcast of the program, arguing an injunction was necessary to protect the rights of the home’s residents to privacy under art 8 of the European Convention on Human Rights as incorporated in the Human Rights Act 1998 (UK).  (Mann J also observed that BKM’s own reputation and effect on its business seemed to be significant underlying factors to the decision to bring the application.)  In response, the BBC relied on its right to freedom of expression under art 10 of the Convention, arguing that the public interest in inadequate aged care standards demanded that the material be broadcast.

Decision

Mann J confirmed that he was required to conduct a balancing exercise between the right to freedom of expression and the right to privacy, as per Lord Steyn’s approach in Re S (A Child) [2005] 1 AC 593.  This balancing exercise is undertaken in light of s 12(3) of the Act, under which publication cannot be restrained before trial unless the court is satisfied that the applicant is likely to establish at trial that publication should not be allowed.  The BBC also had the benefit of s 12(4) of the Act, under which courts must have regard to the importance of the right to freedom of expression and any relevant privacy code.  Mann J found that the BBC’s secret filming had complied with relevant privacy codes.

Mann J determined that the potential level of invasion of the residents’ privacy was reduced by the BBC’s promise to pixelate images such that the residents would be unidentifiable.  Balancing the significant public interest in exposing inadequate standards of care in nursing homes against the ‘relatively slight’ invasion of the residents’ privacy, Mann J concluded that the right to freedom of expression in this case out-weighed any infringement of the residents’ privacy rights.

Accordingly Mann J refused to grant the interim injunction sought by BKM.

Relevance to the Victorian Charter

The decision of the England and Wales High Court provides guidance for interpretation of s 15 (the right to freedom of expression) and s 13 (the right to privacy) of the Charter, particularly in situations where those rights compete.  The decision can be distinguished, though, on the basis that the Charter does not contain provisions similar to ss 12(3) and 12(4) of the UK Human Rights Act, which place greater emphasis on the importance of freedom of expression in the balancing equation.

The decision is available at http://www.bailii.org/ew/cases/EWHC/Ch/2009/3151.html.

Jessica Zikman is a lawyer with Lander & Rogers