Ali & Aslam v Channel 5 Broadcast Limited  EWHC 298 (CH)
The English High Court has found an episode of a documentary-reality series broadcast by Channel 5, in which a family was shown being evicted from their home, breached the family’s right to privacy under article 8 of the European Convention on Human Rights (ECHR). This right was held to take precedence over Channel 5’s freedom of expression under article 10 in this case, providing guidance as to what circumstances will justify the displacement of a right which the European Court of Human Rights views as “an essential foundation” of democracy.
The claimants, Mr Ali and Ms Aslam, and their two children, were evicted from their home by High Court Enforcement Agents (HCEAs) executing a Writ of Possession obtained by their landlord for failure to pay rent.
The Writ was obtained through a new High Court process which did not require notice to be given of the time and date of its execution. As a result, the claimants were taken by surprise when HCEAs arrived at 8:29am, and gave the family one hour to collect their possessions and vacate the premises.
The HCEAs were accompanied by the landlord’s son, Mr Ahmed, and a film crew who filmed the eviction process to appear in the program, Can’t Pay? We’ll Take it Away. The purported purpose of the program was to “[explore] the growing problem of debt in the [UK]” by depicting the work of HCEAs. The program particularly aimed to highlight the expedited High Court eviction process and its effects on ordinary people’s lives.
The episode included footage of the home’s interior, including the untidied bedroom, as well as the claimants being berated and taunted by Mr Ahmed as they packed up their belongings. Footage which was not broadcast also showed one HCEA, Mr Bohill, several times urging Mr Ahmed to confront the couple, saying it would make “good television”.
At various times, both claimants requested the crew to stop filming, and also to be informed what the filming was for. These requests were not complied with. About an hour into the eviction process, Mr Ali agreed to be interviewed on camera.
The claimants brought a claim for damages, for misuse of private information in breach of their rights under article 8 of the ECHR. Channel 5 argued that the claimants enjoyed no reasonable expectation of privacy with respect to those matters such as to engage article 8, or, if they did, the right was overridden by Channel 5’s own right to freedom of expression under article 10. The Court rejected both of these arguments, awarding damages of £20,000.
Reasonable expectation of privacy
The engagement of article 8 turned on whether the claimants enjoyed a reasonable expectation of privacy with respect to the information broadcast. This was an objective test, considering the expectations of a reasonable person in the position of the claimant.
In finding that this reasonable person test was satisfied, Justice Arnold considered that:
[t]he Programme was largely filmed in their home; it showed them being evicted without prior warning; … in a state of shock and distress; … being taunted by [Mr] Ahmed; and it was foreseeable that [its] broadcasting … would have an adverse effect on their children.
His Honour appeared to understand article 8 as essentially concerned with protecting two things:
- the “sanctity of the home”; and
- “human … dignity” (adopting Lord Hoffman’s interpretation of the right in Campbell v MGN Ltd).
The former protection was violated by the broadcast of footage showing the interior of the claimants’ home in an unmade state due to the eviction having taken them by surprise. In particular, footage of the bedroom was particularly upsetting for Ms Aslam as “a traditionally-minded Muslim woman who was expected to dress and behave modestly.”
The latter protection was apparently self-evidently violated by the broadcast of footage of the claimants “at their lowest ebb, being evicted without prior notice, in a state of shock and very distressed, being repeatedly taunted by [Mr] Ahmed.”
Channel 5’s alternative defence was that the claimants had consented to the broadcast of their information, evinced by his granting an on-camera interview. Justice Arnold also rejected this as any consent was
- uninformed, and Mr Ali, having been just awoken, “clearly drowsy and confused”, was “not in a fit state” to give it; and
- given under duress, it being clear that “Mr Ali appreciated that he faced a choice as to which was the lesser of two evils”, in view of the fact that the footage would be broadcast either with or without including his “side of the story”.
Balance of article 8 and article 10 rights
It being accepted that the claimants did enjoy a reasonable expectation of privacy, it was necessary to resolve the consequent conflict between article 8 and the freedom of expression afforded Channel 5 under article 10.
It was common ground that the correct approach was that outlined in Re S (A Child), which proceeds from the starting point that neither right takes precedence over the other per se, and then involves a three-stage, fact-dependent inquiry:
- a comparison of the relative importance of the two rights in the circumstances;
- an account of the respective justifications for restricting either right; and
- a proportionality test.
At the first stage it was recognised that, in the eyes of the European Court of Human Rights, freedom of expression is “one of the essential foundations of democratic society” (Axel Springer AG v Germany). This set a high bar with respect to restricting the right for the second stage: “the need for any restrictions on freedom of expression must be convincingly established.”
Public interest justification
“An important question” at this second stage was “the extent to which the Programme made a ‘contribution to a debate of general importance to society’” (Axel Springer). Such a contribution justifies an incursion on an individual’s article 8 rights, particularly in view of the European Court’s consideration that the freedom of expression entails the freedom to choose the mode of expression that would convey information most effectively:
… stories about particular individuals are simply much more attractive to readers than stories about unidentified people. … Writing stories which capture the attention of readers is a matter of reporting technique … (In re Guardian News and Media)
Evidence that the series’ creators genuinely held the purpose of informing on a matter of public interest, that is, the effects of debt and the new High Court eviction procedure on ordinary people, was not challenged. However, the assessment was an objective one; the subjective intention of the program’s creators was disregarded in favour of what was actually communicated by the broadcast.
Justice Arnold found that this, especially when viewed in conjunction with unaired footage depicting Mr Bohill’s efforts to influence events, disclosed that the program actually focused on the conflict between the claimants and Mr Ahmed, rather than its stated purpose. Though an “attentive viewer might [have deduced]” this public interest element, this did not justify the incursion on the claimants’ article 8 rights.
“Ultimate balancing test”
Application of the proportionality or “ultimate balancing test” determined that while the Programme did to some extent serve a public interest, “the inclusion of the Claimants’ private information … went beyond what was justified for that purpose”. As such, though he acknowledged the special importance of freedom of expression, its restriction was justified in the circumstances, and the balance was in favour of the claimants’ article 8 rights.
Freedom of expression is acknowledged as a fundamental right, crucial to the protection not only of individuals, but also of democratic societies. It is thus very difficult to displace, particularly in favour of a right such as that afforded by article 8, which purely protects individuals.
In finding a balance in favour of article 8 over article 10 rights, however, this case acknowledges that conflicts between the two very often involve a stark power imbalance between the parties, especially when the entity invoking article 10 is a large media outlet. This acknowledgement was evident in Justice Arnold’s dismissal of Channel 5’s citing of Mr Ali’s agreement to be interviewed on camera as evidence of consent, incisively characterising it as “an agreement to participate under protest.”
It was also evident in the way in which the program’s editing and focus impacted upon the assessment of the public interest justification. Editorial freedom was acknowledged as a genuine and necessary element of freedom of expression, often justifying the use of individual’s private information, even in harmful ways. However, also acknowledged was the extraordinary power that the freedom to use this as a communicative tool gives to those in possession of it. The case draws a sharp distinction between the granting of this leeway in the service of genuine contribution to public discourse, and in the service of mere entertainment, and, ultimately, profit.
Implications for the limitation of media freedom of expression in Australia
Programs like Can’t Pay? We’ll Take it Away exist in Australia also. But conflict between the rights and interests of media outlets and private citizens is not as prominent a concern in Australian public life as in the UK, where media outlets’ tendency to exercise their freedom of expression by running roughshod over individuals’ privacy is so prominent a public issue as to warrant the instigation of the Leveson Inquiry in 2011.
This difference may explain Australia’s comparative lack of protection of privacy. Unlike in the UK, there is no common law tort of privacy in Australia. This is despite the right being enshrined in article 17 of the International Covenant on Civil and Political Rights (ICCPR), to which Australia is signatory.
Certainly, there is no barrier to the explicit recognition of a right to privacy in either common law or statute. There appeared to be some momentum towards such a move in the 2000s, with several judgments (Grosse v Purvis  QDC 151; Doe v Australian Broadcasting Corporation & Ors  VCC 281) noting the lack of any obstacle in Australian case law to recognising a tort of invasion of privacy, and an Australian Law Reform Commission recommendation in 2008 (and again in 2014) that a statutory protection be created. With the recent growth in popularity of ‘shaming’ television, such as RBT and Border Patrol, it is possible that these ideas will be revisited.
Similarly, however, in Australia there is no direct protection of freedom of expression beyond an implied constitutional protection of political communication and principles of statutory interpretation that favour the preservation of fundamental rights (which include freedom of expression). Were the two relatively weak rights to come into conflict in an Australian context, the decision in Aslam may however provide some guidance as to how Australian courts may go about striking the balance between them.
The full decision can be found here.
Georgia Bourke is an Assistant Editor of the Melbourne University Law Review.