On 15 June 2017, a man who featured in a short sequence in a Channel 4 documentary about a grassroots movement to stop bailiffs evicting people from their homes failed in a bid to get a last-minute court order to block transmission of the programme.
The Claimant, Tobe Leigh argued that although he had signed a consented to the filming, both in writing and orally, he had withdrawn those agreements, and had a reasonable expectation of privacy which overrode the broadcaster’s rights to freedom of expression.
But his application was rejected by Mr Justice Popplewell, and the one-hour programme, Battling the Bailiffs, which dealt with five actual or threatened evictions, was broadcast as scheduled at 10pm on Thursday last week.
Mr Leigh featured in a segment of the one-off documentary which lasted a total of 4 minutes and 43 seconds, and mainly concerned the interactions between ex-boxer Chrissy Martin, a member of the movement to stop bailiffs carrying out evictions.
But he himself appears for only some 30 seconds – the rest of the sequence concerned Mr Martin’s encounter with the bailiffs.
It showed Mr Martin arriving at Mr Leigh’s home and greeting him, the bailiffs arriving outside the house, then leaving by car after rejecting Mr Martin’s demand that they should produce identification documents.
Mr Martin follows the bailiffs down the road, and is seen talking to them in a threatening and confrontational manner. The bailiffs depart, saying they will return, and Mr Martin returns to the house, where Mr Leigh thanks him. The commentary says Mr Leigh now plans to take his case back to court.
Mr Leigh had signed an agreement consenting to be filmed for the programme and for Channel 4 to make use of his image and footage in January 2016, and gave oral consent to filming of him and in his house on April 5 that year.
The film was edited in July and August 2016 – but it was not until September that Mr Leigh first made it clear he wanted to withdraw his consent.
He argued at last week’s hearing that he should not be bound by the contractual agreement, that he had withdrawn his consent and that the programme infringed his privacy.
He also argued that the programme misrepresented what had happened as it showed Mr Martin as the hero when in reality he had successfully fought eviction through the Courts.
Guy Vassall-Adams QC, for Channel 4, argued that any reasonable expectation of privacy Mr Leigh had was of very low order, given that he had twice consented to the filming – in writing and orally – that almost all the filming took place outside, that Mr Leigh made only a brief appearance in the programme, but also because he had publicised these issues himself on social media.
There was a strong public interest in the programme – and the sequence featuring Mr Leigh was short, but important in providing balance to the programme as a whole, as Mr Martin’s interactions with the bailiffs did not show him in a good light.
In addition, it was unreasonable for Mr Leigh to wait until the day before broadcast to apply for an injunction – he had known for months that Channel 4 did not accept his withdrawal of consent, and if he now obtained the order he wanted the broadcaster would be prevented from airing the entire programme, which would be a disproportionate interference with its rights to freedom of expression under Article 10 of the European Convention on Human Rights.
Dismissing the application, Mr Justice Popplewell said Mr Leigh had consented to the filming in a signed release and orally.
He rejected Mr Leigh’s argument that his consent was not binding and irrevocable, saying he was not persuaded that if the issue was purely a question of contract he would be more likely than not to succeed in arguing that he was not bound by his agreements.
But his expectation of privacy was not wholly dependent on the contract – a person did not not necessarily give up his Article 8 rights in all circumstances.
Mr Justice Popplewell said he would proceed on the basis that following his withdrawal of consent Mr Leigh retained his Article 8 rights and that he had an expectation of privacy regarding his personal life, imagery and home.
But, balanced against Channel 4’s rights, Mr Leigh’s Article 8 rights were weak: He had consented twice to the filming, and he had not been misled about the programme, as despite what he argued, the description of the programme in the signed release was accurate.
The production company, Nine Lives Media, had also relied on his consent, and spent for days filming in relation to him for a programme with a total budget of about £160,000.
In addition, the invasion of his privacy was relatively minor – the programme did not portray Mr Leigh to any great extent, most of the filming was outside his property, and he was shown in a good light.
Mr Justice Popplewell said Mr Leigh’s concern was not so much about privacy as about fairness, and he was really complaining that the clip portrayed things in a misleading light, suggesting that Mr Morris was responsible for the eviction being unsuccessful.
Whether the film was inaccurate was a matter of debate, said, the judge, adding that what was significant was that Mr Leigh’s real concern was its tone as opposed to whether his intended eviction would be publicly portrayed.
But Channel 4’s Article 10 rights were weighty, Mr Justice Popplewell said.
The programme concerned a topical issue – campaigners trying to resist evictions – and the sequence in question was not unimportant for the programme as a whole.
The grassroots movement itself was problematic, and the sequence did not show Mr Morris in a good light.
Although the segment in question lasted 4 minutes 43 seconds, it was potentially important for the fair presentation of the theme.
Mr Leigh’s application was also extremely late, having been made only the day before the hearing, even though he had been asking for the footage to be removed since last autumn and it had been apparent since May that the programme was going ahead.
The programme had already been publicised, and trailers broadcast, and it could not now be edited before broadcast, so granting an injunction would mean that it would have to be pulled from the schedule.
Finally, said said Mr Justice Popplewell, Mr Leigh could not show it was more likely than not that he would obtain the injunction at trial.
Channel 4 was represented by Guy Vassall-Adams QC, instructed by Amali da Silva at solicitors Wiggin LLP, and Mr Leigh was represented by Spencer Keen, instructed by the Royal Courts of Justice pro bono service.
This article originally appeared on the online subscription service Media Lawyer and is reproduced with permission and thanks.