In a judgment delivered on 22 February 2018 in the case of Ali v Channel 5 Broadcast ( EWHC 298 (Ch)) Arnold J ordered Channel 5 to pay £20,000 in damages for misuse of private information to a couple, Shakir Ali and Shahida Aslam, who had fallen into rent arears.
The couple’s eviction from their home in Essex three years ago by High Court Enforcement Agents had been filmed by a TV Production company, Brinkworth Films and broadcast by Channel 5 on its show, Can’t Pay? We’ll Take it Away – to 9.65 million viewers.
Was there a reasonable expectation of privacy in respect of the material?
The Claimants did not complain of broadcasting the fact they had been evicted, or the loss of reputation inherent in their eviction. The claim was restricted to the broadcasting of the details of what had taken place. As summarised by Arnold J at §48:
The Programme was largely filmed in their home; it showed them being evicted without prior warning; it showed them in a state of shock and distress; it showed them being taunted by Omar Ahmed [son of the Landlord]; and it was foreseeable that the broadcasting of the Programme would have an adverse effect on their children [they had two, in school at the time of the eviction].
Channel 5 argued that there was no reasonable expectation of privacy in respect of the material, relying upon:
- The principle of open justice. Arnold J accepted that open justice entitled Channel 5 to report that a County Court had made an order for possession and the High Court had issued the Writ against the Claimants. However, this did not justify the broadcasting of information at issue, which went “well beyond those bare facts and included them being filmed in their home, in distress and being taunted”: 
- Channel 5 were broadcasting the consequences of unlawful conduct. Mr Ali and Mr Aslam had failed to leave the property voluntarily – in contempt of the County Court Order and behaviour which necessitated obtaining the Writ. The Claimants argued that the broadcasting of information in issue was not a foreseeable consequence of their eviction. Arnold J agreed: .
- Mr Ali’s Article 8 rights were significantly weakened by his political activity. Mr Ali at the time of the eviction was the Media Secretary of the UK Chapter of the Pakistan Muslim League, a centre-right political party. But there was no reference at all to this position in Channel 5’s programme, which portrayed the Claimants as “ordinary private people”. Curiously, Arnold J was also influenced by the fact that the position was not official and was unpaid; it was “a hobby”. Arnold J did accept, however, that the position would have been different if the programme had been about Mr Ali’s fitness for public office as a consequence of the County Court Judge having rejected his evidence: .
- Part of the programme was filmed on the street, not the home, so there was no reasonable expectation of privacy in respect of those events. Arnold J held that the eviction was part of “a single sequence of events” and so the part in the street “could not meaningfully be divorced from the part which was filmed in the property” .
- The couple consented to being filmed. During the course of the eviction, Mr Ali agreed to be interviewed on camera. However, Arnold J held that the consent was neither informed nor voluntary: Mr Ali was drowsy, confused and not in a fit state to give consent for the first hour of the programme. By the time he agreed to being interviewed, Mr Ali had objected to filming twice, to no avail. It was never explained to him who the film crew were, why they were there, or that the High Court Enforcement Officers were effectively filming for the programme on their body cameras. The Judge was unpersuaded by the submission based on Mr Ali had previous media experience: It had all consisted of “entirely voluntary participation by him in discussion of political topics which he wished to make a contribution to under conditions he was comfortable with”. Mrs Aslam had independently objected to filming: [172-179].
Balancing Article 8 and Article 10
Channel 5 argued that the programme addressed a number of matters “of real public interest and concern”:
‘increasing levels of personal debt, and in particular rent arrears of tenants in privately-rented accommodation; the dependence of tenants on benefits, and in particular housing benefit; the effect of enforcement of writs of possession by HCEAs; and the consequences for both landlords and tenants….[and] it was justified for Channel 5 to illustrate these matters by showing what happened to real people in real situations, because that was the best way to engage the public and stimulate debate’ 
Arnold J agreed that these were matters of public interest and concern, but found that the extent to which the programme addressed them was very limited ([§195]-[§196]):
“The focus of the Programme was not upon the matters of public interest, but upon the drama of the conflict between Omar Ahmed and the Claimants. Moreover, that conflict had been encouraged by Mr Bohill [the High Court Enforcement Officer] to make “good television” and other aspects of Mr Bohill’s contribution were also intended by him to make “good television” [this refers to the finding at  that Mr Bohill had encouraged Omar Ahmed to taunt the Claimants]….
… A particular feature of Mr Brinkworth’s public interest justification was the desire to show how landlords could expedite enforcement by moving the process from the County Court to the High Court, and the effect of this. I agree that this is a matter of public interest. However, the Programme contained no information about the legal processes involved beyond the statements that the landlord had gone to the County Court eight months before and had now escalated the case to the High Court to get the tenants evicted…
The circumstances of the Claimants’ eviction reveal what in my view is a matter of considerable public interest and concern, namely the fact that the Claimants were given no notice of the eviction and were taken wholly by surprise. (Moreover…they were then faced with having to go to the Council to seek emergency accommodation for themselves and their children.) Yet this important aspect of the story is not mentioned in the Programme, although a very attentive viewer might deduce it”.
Arnold J accepted that there was a role for editorial discretion and that this would count against the Claimants to the extent that their complaint was about the Programme’s tone. However, having had regard to the OFCOM Code (which “add[ed] nothing to the general law that is relevant” ), Arnold J concluded that the infringement of privacy went beyond what was justified. The balance came down in favour of the Claimants’ Article 8 rights.
This is a tough knock-down of voyeurism masquerading as public interest journalism. It is also a stringent exposition of the requirements of informed consent – and one which would find favour with GDPR proponents and those Parliamentarians shepherding the new Data Protection Bill through Parliament. Media outlets should note Arnold J’s emphasis upon the need to to explain the purpose of the programme and the location of cameras as necessary conditions of valid consent. The finding that Mr Ali was incapable of giving valid consent until he had been given time to process what was occurring in particular will be met with alarm by others in the field of “gotcha” television. It should be emphasised, however, that the requirements of consent vary according to the intensity of a privacy intrusion; and that whilst consent is helpful (and often determinative), it is not a necessary condition of a successful defence.
The programme is in its fifth series and the couple’s victory may well lead to further claims. Is the judgment appeal-proof? Arnold J’s assessment of the open justice principle and reasonable expectation of privacy was sound on the facts. However, the judgment sailed dangerously close – and may well have strayed over – the latitude required by law to be given to editorial discretion. For those disgusted by “poverty tourism”, Arnold J’s assessment at  of what was “revealed” only to the “attentive viewer” as the “important” public interest aspect of the story may well raise a cheer. But these words are vulnerable to the criticism that they amounted to wagging a finger at the media for failing to focus on the Judge’s own particular view of what the programme’s slant ought to have been, in circumstances when multiple public interest justifications were legitimate. The only concession Arnold J made in favour of editorial latitude in the end concerned the “tone” of the broadcast. The latitude is wider than that. It is not yet known whether the decision will be appealed, but it may be vulnerable for reaching a perfectly defensible conclusion by straying unnecessarily on to the political grass.
Each claimant was awarded £10,000. Damages may have been higher had the Claimants been able to prove aggravating factors including the unfairness and inaccuracy of the programme. More generally, having reminded himself that Mr Ali should not be compensated for damage to his political reputation and having pointed out that it was Mrs Aslam who was caused “particular” distress, it is unclear why Arnold J did not differentiate between husband and wife in his final assessment of quantum.
Finally, the judge accepted only that the information was “fairly” sensitive. Even taking the fact and lawfulness of the eviction as a starting point, for 9.65 million viewers of what was a depiction of the couple in their home “at their lowest ebb, being evicted without notice, in a state of shock and very distressed, and being repeatedly taunted”, £10,000 does not seem like much.
Zoe McCallum is a barrister at Matrix Chambers, she specialises in media and public law.