Can’t pay we’ll take it away: privacy damages – where’s the line between entertainment and legal risk?

On the 22 February the High Court published its judgment in relation to a story broadcast as part of Channel 5's popular television series Can't Pay? We'll Take It Away. 

The show is an observational documentary series in its fifth season which explores the growing problem of debt in the UK community, and depicts the work of High Court Enforcement Agents ("HCEA").  The disputed episode featured film of the Claimants being evicted from their home by the HCEA who were legally enforcing a Writ of Possession obtained by their landlord. The landlord was present during the filming with his son and both men feature in the episode. CPWTIA is filmed by production company Brinkwork Films Ltd and broadcast by Channel 5. The episode was viewed by 9.65 million people.

The film crew accompanied the HCEA to the property the claimants were living in and were met there by the landlord's son. They then begun the legal process of physically evicting the Claimants and their family from the property.

The first Claimant, Mr Ali, who was living on the ground floor due to an injury, was woken by their arrival to the property; he wore pyjamas and looked drowsy initially. His wife, the second Claimant, Mrs Aslam, was away dropping their children at school and Mr Ali had to make a call to ask her to return home as soon as possible. The Claimants had not known the eviction would happen so soon. Mr Ali was not initially told why the eviction was being filmed and repeatedly asked for the cameras to be removed. On Mrs Aslam's arrival back to the property she did the same. Given the presence of the landlord and the landlord's son there were a number of arguments filmed between the parties who threw accusations at each other. Throughout the filming there were multiple references by the lead HCEA to making 'good television' and encouraging dramatic behaviour. At one point the lead HCEA claimed he was going to 'pour some petrol on the situation'.  

It wasn’t in dispute in the Court proceedings for invasion of privacy that the Claimants later brought that the purpose and concept of the series was in the general public interest. However, the Claimants successfully argued that their story had gone beyond this and misused their private information.

Privacy Claims

In cases of misuse of private information, the court needs to consider two key issues:

1. Whether the Claimants have a reasonable expectation of privacy in relation to the information broadcast so as to engage their Article 8 ECHR rights; and if so
2. Whether the Claimant's Article 8 rights outweighed the broadcaster's right to freedom of expression under Article 10 ECHR.

Reasonable expectation of privacy

The High Court did not have trouble establishing the Claimants' reasonable expectation of privacy. They were filmed in their home (which the property continued to be until they left it) and had a reasonable expectation of privacy within this home notwithstanding that they were being evicted. The episode showed the Claimants at their lowest ebb, in a state of shock and distressed which the court agreed caused them significant loss of dignity (albeit the court was perhaps a little harshly not understanding to Mr Ali's argument that being caught in his pyjamas added to his loss of dignity).

The High Court also noted that, as underlined by previous case law, photography and video were a more intrusive invasion of privacy over words alone. The High Court was also keen to highlight that the parts of the episode which were filmed publically on the street outside the property did not affect the Claimants' expectation of privacy.

Finally, whilst the episode concerned elements of open justice i.e. that this was part of the legal process of evicting tenants, and the consequences of unlawful conduct, the court was not convinced this waived all expectation of privacy on behalf of the Claimants. The court agreed with the Claimants that the additional information which was broadcast in their story was not a foreseeable consequence of their failure to comply with the order for possession by the court.

Balancing the Convention rights

The real discussion hung on the court's balancing of the parties' rights under Article 8 and Article 10 ECHR.

Helpfully for broadcasters, the High Court highlighted that when contributing to a debate of general importance in society (i.e. relying on public interest) it may be okay to identify the individuals used in the story because the audience is more likely to pay attention and the message is more likely to come across. Therefore the identification of the Claimants and filming of their evictions were likely to be in the public interest regardless of any expectation of privacy they might have.

From reading the judgment it is clear pretty quickly that this case swung on the behaviour of the HCEA team and the over-dramatisation of the story in order to make 'good television', and critically the filming which took place in the home.

The evidence showed that the lead HCEA actively encouraged conflict between the landlord, the landlord's son and the Claimants in order to improve the quality of the episode. This led to a conclusion by the Court that although the episode was fair and accurate in its overall presentation, the HCEA did not carry out the Court order respectfully, politely or professionally. Despite the court agreeing that the episode was in the public interest overall, Channel 5 lost the case on this basis - the broadcast went beyond what was justified and the focus had moved from matters of public interest to the drama of the conflict between the landlord's son and the Claimants, particularly in respect of matters filmed in the home.

The court was also persuaded by the fact that the programme in general contained no information about the legal process behind the eviction or the steps the Claimants had to take post-eviction to find emergency housing for their family. Consequently the court found in favour of the Claimants who received £10,000 each in damages. 

What is the Impact of the case on "Real Life" Drama?

For production companies producing documentaries about issues of public interest or broadcasters of these programmes, this case does not present anything to panic about. What it does highlight for consideration is the line between telling the facts about real people in an even-handed way and the risks of both filming in people's homes and the connected risk of over-dramatisation of personal stories for the entertainment of the general public.

Reading the Court's judgment it is relatively easy, we think, to come up with a way that the footage of the eviction could have been cut in a way that avoided the liability.  Now, certainly, that would have made for a less dramatic episode, and there is an editorial balance to be struck, but an episode with less of the self-referential comments (particularly suggestions that the HCEA was egging things on), which featured more focus on the footage in the public domain than in the home, and which told the story more about the process of eviction than the family drama consequent to it, would likely not have ended in the same result in Court. 

Overall, our guidance would be that production companies and broadcasters need to be comfortable that they are presenting a fair and accurate representation of the facts without unduly dramatizing or romanticising the issues.

In addition, the whole story should be told rather than focusing on the entertaining parts and foregoing an acknowledgement of the practical elements either side. The challenge is to do that in a way that remains good tv.  We think that challenge is not un-winnable and things like graphics, narration and sidebars can be used to present that overall fair view without making everything so dull only the lawyers would approve!

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