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British Broadcasting Corp, R (on the application of) v Broadcasting Standards Commission [2000] EWCA Civ 116 (6 April 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/116.html
Cite as:
[2000] EWCA Civ 116,
[2000] EMLR 587,
[2000] UKHRR 624,
[2001] 1 BCLC 244,
[2000] COD 322,
[2000] 3 All ER 989,
[2000] HRLR 374,
[2001] BCC 432,
[2000] 3 WLR 1327,
[2001] QB 885
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Case No: QBCOF 1999/0779/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISON
(MR JUSTICE FORBES)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 6 April 2000
B e f o r e :
THE MASTER OF THE ROLLS
LADY JUSTICE HALE
and
LORD MUSTILL
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REGINA
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and -
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BROADCASTING
STANDARDS COMMISSION EX PARTE BRITISH BROADCASTING CORP
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Appellant
Respondent
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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The Hon Michael Beloff QC and Mr Rabinder Singh (instructed by Gregory
Rowcliffe & Milners, London WC1R 4BY for the Appellant)
Mr David Pannick QC and Miss Kate Gallafent (instructed by The BBC
Litigation Dept., London W12 7TS for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©
Lord Woolf MR :
1. This appeal concerns a decision of the Broadcasting Standards Commission.
The Broadcasting Act 1996 established the Commission (referred to in the Act
(s.106) and in this judgment as "the BSC"). The Act gave the BSC a number of
duties. The duties which are relevant to this appeal are :
(i) to draw up, and from time to time review, a code giving guidance as to
principles to be observed, and practices to be followed, in connection with the
avoidance of :
"(a) unjust or unfair treatment in programmes to which this section applies,
or
(b)
unwarranted infringement of privacy in, or in connection with the
obtaining of material included in, such programmes" (s.107(1); emphasis
added).
(ii) to publish the code (s.107(3)).
(iii) to consult various bodies including the BBC (s.107(4) and (5)).
(iv) to draw up a code giving guidance as to the practice to be followed in
sensitive areas, including violence, sexual conduct and standards of taste and
decency (s.108).
(v) to monitor broadcasting standards to which s.108 applies with a view to
making reports (s.109).
(vi) "to consider and adjudicate on complaints which are made to them in
accordance with ss.111 and 114 and relate - (a) to unjust or unfair treatment
in programmes to which s.107 applies, or (b) unwarranted infringement of
privacy in, or in connection with the obtaining of material included in,such
programmes" (s.110(1)).
(vii) to consider and make findings on complaints which are made to them in
accordance with ss.113 and 114 and relate to the portrayal of violence or
sexual conduct in progammes or alleged failures of programmes to attain
standards of taste and decency (s.110(2)).
(viii) when considering, or adjudicating or making findings on complaints to
take into account any relevant provisions of the appropriate code".
2. In the performance of the duties to which I have referred, on 5 May 1998
the BSC upheld a complaint of 18 June 1997 by DSG Retail Limited ("Dixons")
that secret filming by the BBC was an unwarranted infringement of Dixons'
privacy in connection with the obtaining of material included in a BBC
programme.
3. The BBC contend that the decision of the BSC was ultra vires and unlawful.
The BBC therefore made an application for judicial review. They relied on
three grounds in their form 86A :
(i) That a company cannot enjoy a right to privacy.
(ii) That privacy cannot apply to the filming of events in the place to which
the public has access.
(iii) That the decision of the BSC is unreasonable or fails to have regard to
the relevant factors.
4. By a judgment given on 9 July 1999, Forbes J granted the BBC's application
for judicial review and quashed the decision of the BSC. He granted the BSC
permission to appeal against his decision. He did so because his decision
raises two issues. First, whether a body corporate such as Dixons is able as a
matter of law to bring a complaint for infringement of its own privacy under
ss.110 and 111 of the Act and, second, whether secret filming in a place to
which the public have access can amount to an infringement of privacy unless
what is filmed itself has a private element (which did not exist in this case).
The judge rejected an additional contention that the decision of the BSC was
"
Wednesbury" unreasonable. The BBC have not challenged the last part of
the decision. This appeal relates to the reasoning of the judge which resulted
in his quashing the decision of the BSC.
5. The issues as to privacy which caused the judge to come to his conclusions
are ones of general interest and importance. They are of particular interest
to the organisation called Liberty. With the parties' consent and by order of
Schiemann LJ made on 26 January 2000, Liberty was granted permission to
intervene on the appeal. Subsequently, Liberty was confined by the Court to
making written submissions. The submissions which were made focused on whether
making a secret film of staff working at Dixons' stores so lacked an element of
seclusion or privacy that it could not infringe a right to privacy. As to this
Liberty submitted that the jurisprudence derived from the European Convention
of Human Rights and the Canadian Charter of Rights and Freedom are of
assistance. Summarising Liberty's submissions, they amount to a contention
that to film a person without his consent is in
itself a breach of the
right to privacy because it interferes with the idea of personal autonomy or
control every person has over his own identity. Here reliance was placed upon
Les Editions Vice-Versa v Aubrey [1998] 5 BHRC 437. Liberty argues that
the right to privacy, as is the case with other human rights, should be given a
broad and generous construction. It contends that attention should be focused
on the justification for interfering with a right.
6. Mr Pannick QC, on behalf of the BBC, in his helpful oral submissions urged
this court to uphold the decision of Mr Justice Forbes and to an extent
reflected the submissions of Liberty. He submitted that, in order to
understand the ambit of privacy, the approach to privacy in human rights
jurisprudence and the constitutions of other jurisdictions is of critical
importance in determining :
(i) Whether a company or body corporate enjoys a right to privacy;
(ii) Whether it is an infringement of a right to privacy to film secretly in a
place to which the public has free access when the event or events filmed are
not inherently private in any respect. (It will be noted that the second issue
as identified by Mr Pannick both before this court and before Forbes J is more
restricted than was set out in the form 86A. In the form it was suggested that
privacy could not ever be involved if the filming was of events in a place to
which the public has access.)
7. In general Forbes J accepted Mr Pannick's approach. He concluded that "on
the present state of the authorities, ... Article 8 of the ECHR is not designed
or intended to protect corporations or companies. ... There is an obvious
overlap between Articles 8 and 9 of the Convention, both of which are designed
to protect various aspects of human personality."
8. Forbes J concluded that it would be very surprising if Parliament had
intended "a wider concept of privacy in the 1996 Act" than that expression had
under Article 8 of the ECHR. As the meaning of privacy in the 1996 Act was
ambiguous, in accordance with the decision in
Ex Parte Brind [1991] 1 AC 696, it was appropriate to interpret it in accordance with the ECHR.
Accordingly its meaning should be restricted "to human individuals and does not
extend to corporations". As to the second issue, Forbes J took the view that
the various transactions involved no element of intrusion on "seclusion".
Accordingly, in his judgment there could be:
"No infringement of privacy by the mere fact of surreptitious filming of an
event in public if, as in the present case, there is no element of seclusion in
the event being filmed so as to attract the necessary quality or aspect of
privacy to that event."
9. In his equally helpful submissions Mr Beloff QC, on behalf of the
Commission, attacked each of the building blocks on which Mr Pannick had based
his submissions and the judge his decision. Mr Beloff regarded the language of
the 1996 Act as being explicitly in his favour. There was no need to have
regard to any external aid to construction. If there was, in accordance with
Pepper v Hart [1993] AC 593, it would be appropriate to look at the
legislative history and, when this was done, in the case of both Houses of
Parliament it was clear that companies were intended to be entitled to complain
about infringements of their privacy. He contended that the jurisprudence of
other jurisdictions was by no means unanimous and, even in relation to the
ECHR, the jurisprudence should be regarded as either supporting his contentions
or as at least leaving the question of whether a company can have a right to
privacy open. Both Mr Pannick and Mr Beloff relied on the writings of
distinguished academics on this subject in this country and abroad.
10. For the purpose of this judgment, for the reasons which I will seek to
explain, although this material provides a helpful background to reaching my
decision in this case, it does not in my judgment provide the answer to the
issues which I have to determine. I therefore propose to do no more than to
refer specifically to the opinion of Advocate General Mishco in cases 46/87 and
227/88
Hoechst AG v Commission [1989] ECR 2859 at pp. 2884-2896. He
conducts a wide ranging survey of the law of Member States and indicates that
at the time of his opinion those Member States do not speak with one voice as
to whether concepts such as privacy are capable of applying to commercial
enterprises but finds that "... a general trend is discernable in the national
legal systems towards the assimilation of business premises to a home".
The Proper Approach to the Interpretation of the 1996 Act
11. As the BSC's title makes clear, they are concerned with trying to achieve
proper standards of conduct by the section of the media which falls within its
jurisdiction. The question of what are proper standards is pitted with issues
of great sensitivity and difficulty. It is an area involving tensions between
ensuring that the media has the necessary freedom to perform its important role
while at the same time ensuring that that role does not inappropriately
trespass on the interests of others. While protecting the position of the
media, the BSC are also required to discourage unjust or unfair treatment or
unwarranted infringements of privacy, as well as maintaining broadcasting
standards generally, including standards of taste and decency.
12. This is a field in which it is almost impossible and certainly undesirable
to draft legislation which prescribes in detail what conduct is or is not
acceptable. Instead of seeking to undertake that task, the 1996 Act
established the BSC and then placed duties upon the BSC. The task of the BSC
is, after carrying out consultation, to draw up codes of conduct which are
intended to set out the appropriate standards to which the BBC should adhere.
Subject to consultation, the contents of the code are the responsibility of the
BSC. Compliance with the codes is not obligatory as a matter of law. If the
BBC contravene the code it is not acting unlawfully. The code does, however,
provide a statement of what the BSC regard as being acceptable and unacceptable
behaviour. The protection which the BSC can give to the individual is limited.
Having adjudicated on a complaint, the BSC's powers are restricted to giving
directions requiring the publication of a summary of the complaints, the BSC's
findings and, in the case of a standards complaint, the observations of the
BSC.
13. Although the Act draws a clear distinction between a standards complaint
and a fairness complaint, as a survey of the legislation indicates, the
maintaining of appropriate standards of fairness and standards of programmes is
the responsibility of the BSC. It does this within the statutory structure
which the Act provides. What is important is that the BSC are not concerned
with establishing legal rights, human or otherwise. All they are able to
provide to those who wish to make a complaint is an avenue for doing so and, if
the complaint is upheld, the right to such publicity (if any) of the fact that
the complaint has been upheld as the BSC consider appropriate (under s.119 of
the Act).
14. Understandably Parliament has given to the BSC a broad licence as to how
they exercise their judgment and discretion. Working in co-operation with the
media the BSC will develop an expertise which makes them particularly
appropriate to perform their role. Who has the necessary independence and how
long a person should remain a member of the BSC are obviously matters of
importance and so there are detailed provisions as to this in Schedule 3 to the
Act. The nature of its work and its membership are important when considering
the role of the courts in relation to adjudications by the BSC. What
constitutes an infringement of privacy or bad taste or a failure to conform to
proper standards of decency is very much a matter of personal judgment. This
is not an area on which the courts are well equipped to adjudicate. In
relation to privacy, both the literature and the jurisprudence show an
understandable reluctance to propose a comprehensive definition. As Mr Beloff
submitted, we are here in an area involving open textured concepts. An
interference with privacy is not even like the elephant, of which it can be
said it is at least easy to recognise if not define. The meaning of privacy
can be influenced by the context in which it appears.
15. The matters to which I have referred do not mean that the court has no
role in relation to the activities of the BSC. What it does mean is the role
is limited. The BSC are the successor of the Broadcasting Complaints
Commission. In
R v Broadcasting Complaints Commission ex parte Granada
Television Limited [1995] EMLR 163 the court had to consider a contention
that the Commission could not make a finding that there had been an
infringement of privacy since (1) the matters published were already in the
public domain and (2) the matters published did not relate to the complainants
but to their children. In giving a judgment with which the other members of
the court agreed, Balcombe LJ (at p.167) drew attention to the fact that the
majority of the Younger Committee on Privacy accepted the conclusion of the
"Justice" Committee on Privacy that the concept of privacy could not be
satisfactorily defined (Command 5012 of 1972 paras. 57-61 and Appendix K) and
that the subsequent Calcutt Committee on Privacy was of the same view (Command
1102 of 1990 paras. 31.1/3.8). He also referred to the well known approach of
Lord Radcliff in
Edwards v Bairstow [1956] AC 14 at p.33 and then stated
(at p.168) :
"Unless on no interpretation of the word "privacy" could the finding of the BCC
be justified ..., there is no basis for the grant of judicial review."
He added (at p.168) :
"Whether in such a case there is an unwarranted infringement of privacy is a
matter of degree and as such for the decision of the BSC with which the Court
cannot interfere."
16. I would also refer to
R v Monopolies and Mergers Commission & Anr
ex parte South Yorkshire Transport Limited [1993] 1 WLR 23 at pp.29 and 32H
and
R v The Radio Authority ex parte Bull [1998] QB 294 at pp. 304-305.
The BSC, as part of their role in drawing up the code and in making
adjudications, have a degree of latitude in determining the situations which
are within their remit so that it has statutory authority for laying down
standards with which the media are required to comply. So as long as the
approach which the BSC adopt is one to which, in their statutory context, the
words infringement of privacy are capable of applying, then the Courts should
not interfere. It is only if an approach to "infringement of privacy" by the
BSC goes beyond the area of tolerance that the Courts can intervene. There
will be situations when it will be obvious that what has happened is or is not
within the remit of the BSC. There will be other situations which fall within
the grey area where it will be very much a matter of judgment whether they fall
within the remit of BSC or not. In the latter situations, having regard to the
role the legislation gives to the BSC, the answer as to the scope of its remit
is that it is something for the BSC to determine and not the Courts. However,
if the BSC stray beyond the grey area into the red area, the Court is required
to intervene and give its decision that the case does not fall within the remit
of the BSC.
17. In a difficult case, and this is a difficult case, it is perfectly
appropriate to have regard to the jurisprudence of the European Court of Human
Rights ("CHR"), the European Court of Justice and of other countries. However,
caution needs to be exercised. The context in which a word such as privacy is
used can be important. I have sought to identify the context here, which is
not the same as that under the ECHR. As it happens, I do not regard the
position on the issues with which we are concerned on this appeal to have been
clearly determined by the CHR in a way which points in either party's favour
under Article 8 of the ECHR. Both parties relied on the CHR's decision in
Niemietz v Germany [1992] 16 EHRR 97. But that case is not decisive as
to the approach to Article 8 of the ECHR on the issues with which we are
concerned. Furthermore, as appears from its language, Article 8 is concerned
with privacy in a different context than under the Act. It is the "right to
respect for his private and family life, his home and his correspondence" with
which Article 8 ECHR is concerned. To construe a statute so that it does not
provide less than the protection given by the ECHR can be appropriate, but I
would resist the use of the ECHR to cut down the protection which a statute
would otherwise provide.
Section 3 of the
Human Rights Act 1998, when it comes
into force, will require courts, "so far as it is possible to do so", to
construe legislation so that it will have an effect which is compatible with
Convention rights. Legislation may well be compatible with Convention rights
if it provides greater protection than is provided by Convention rights.
18. In drawing attention to this aspect of Mr Pannick's argument, based on
drawing an analogy with Article 8, I have not lost sight of the importance of
not restricting the BBC's right to freedom of expression under Article 10 of
the Convention. This risk is, however, accommodated by
the Act since, in
relation to the BSC's jurisdiction in respect of complaints, the word privacy
does not stand alone. It is on complaints as to an "
unwarranted
infringement of privacy" that the BSC adjudicate. The requirement that the
infringement has to be unwarranted should be approached in a manner which
prevents any inappropriate chilling of the broadcasting company's Article 10
rights. In addition it is to be noted that Article 10(2) makes the right to
freedom of expression subject to a number of other considerations including
the protection of health or morals, and in particular the "reputation or rights
of others", and information received in confidence. These are similar
considerations to those which the BSC are required to protect.
19. Having drawn attention to those general considerations, I turn first to
the facts which gave rise to Dixon's complaint, then to the decision of the BSC
on the complaint and finally our conclusions as to the specific issues raised
on this appeal.
The Facts
20. Prior to the broadcast by the BBC of an edition of a consumer programme,
"
Watchdog" on 27 March 1997 the programme makers secretly filmed
transactions in Dixons' stores as part of an investigation into the selling of
secondhand goods as new. Dixons were told by the programme's Assistant
Producer that there had been the secret filming of twelve purchases in Dixons'
stores. Dixons had then been asked to respond to allegations that it had sold
secondhand goods as if they were new. The secret filming did not in fact
reveal evidence of misselling and so the secret filming was not used in the
programme.
21. In the past Dixons had been successfully prosecuted on ten occasions for
describing secondhand goods as new and on one occasion, for misdescribing a
"manager's special". However, the convictions had all related to transactions
dated prior to May 1996 and, although there have been complaints since that
time, it was Dixons' contention that the complaints related to the earlier
period. Dixons argued that if the programme makers had carried out basic
research they would have discovered that Dixons' new system was preventing
goods being misdescribed, without the need for secret filming. Dixons also
said that, on two previous occasions, complaints to the BSC had been made with
regard to
Watchdog filming secretly in its stores. There had been an
adjudication on 5 September 1996 which had found "a degree of unwarranted
infringement of privacy" and there had been a subsequent secret filming in
December 1996. Dixons argued that the latest filming had been a fishing
expedition and that the behaviour had been an unwarranted infringement of
Dixons' privacy.
22. Their code, which the BSC had to take into account when reaching that
decision stated:
"
The use of hidden microphones and cameras
The use of secret recording should only be considered when it is necessary to
the credibility and authenticity of the story, as the use of hidden recording
techniques can be unfair to those recorded as well as infringe their privacy.
In seeking to determine whether an infringement of privacy is warranted, the
Commission will consider the following guiding principles.
1. Normally broadcasters on location should operate only in public where they
can be seen. Where recording does take place secretly in public places, the
words or images recorded should serve an overriding public interest to
justify:
The decision to gather the material;
The actual recording;
The broadcast."
23. The BBC had not taken exception to this section of the code. This is not
surprising because their own internal guidance is in similar terms. That
guidance points out that "the use of concealed recording equipment" is "highly
controversial" and that "it is essential that we operate within a framework
which respects people's rights to privacy".
The Decision of the BSC
24. In their decision the BSC explain that they remain of the view that they
can consider complaints where there has been an unwarranted infringement of
privacy when the complaint is made by incorporated bodies. In addition they
state that they do not accept that because the public had access to the
premises, staff and transactions filmed, Dixons' privacy was not infringed.
The BSC considered it "unfortunate" that the BBC regarded the secret film "as
basic research". The BSC were concerned as to the view expressed by the BBC
"that secret filming was simply a more accurate and reliable method of
gathering evidence". The BSC were not convinced by the argument "that the use
of hidden cameras was no more of an infringement of privacy than a journalist
making the same enquiries without recording equipment".
25. Having come to the conclusion that the "secret filming in Dixons' stores,
of Dixons' staff infringed Dixons' privacy in the making of the programme" the
BSC recognised the valuable role that programmes such as Watchdog fulfill and
regarded it as being in the public interest to investigate the sale of used
goods by Dixons. Their criticism of the BBC was, however, that they did not
conduct further research before undertaking the secret filming. They pointed
out that the BBC had been informed by Dixons of their improved procedures and
the BSC regarded this as indicating a need for further research before the
further secret filming.
26. The BSC therefore found "that the programme makers did not have sufficient
evidence to warrant the decision to film secretly in Dixons' stores" and found
"that the infringement of Dixons' privacy was unwarranted". Lady Howe, the
Chairman of the BSC and the Chairman of the panel which made the adjudication,
provided an affidavit. Paragraph 11 of that affidavit is strongly relied on by
Mr Pannick and is in these terms:
"We took the Code into account when deciding that there had been an
infringement of Dixons' privacy in the particular circumstances of this case
when the BBC secretly filmed in a Dixons' store, without Dixons' consent,
Dixons' employees engaged in carrying out their duties on behalf of the
company, including giving advice and completing sale transactions. We did not
confuse the privacy of Dixons with the privacy of its staff. I take the BBC's
criticism to refer to the sentence beginning at the foot of page 7 of the
Adjudication, namely:
"The Commission considers that the secret filming in
Dixons' stores, of Dixons' staff infringed Dixons' privacy ..." We were
not there addressing our minds to any possible infringement of the privacy of
individual members of Dixons' staff but rather took the view that secret
filming of a company's agents going about the company's business was an
infringement of the company's privacy."
27. In view of the terms of that paragraph of the affidavit, Mr Pannick rightly
submits that Dixons' complaint was not regarded by the BSC as being made on
behalf of Dixons' staff. It is made on their own part and there is no reliance
on any distress to any particular member of their staff. Mr Pannick submits
that the BSC's approach is wrong in principle because it focused on the fact of
surreptitious filming rather than on the nature of the act which is filmed.
The BSC had failed to identify the respect in which the filming was private.
There was nothing private or confidential, secluded or secret which was the
subject matter of the filming.
My Conclusions
28. I turn to the two issues.
A. Under the Act, can a company be the subject of a complaint of
unwarranted interference with its privacy?
29. There is no dispute that a company can make a complaint. This is
categorically stated in s.111(1) of
the Act. S.111(1) provides :
"(a) a fairness complaint may be made by an individual or a body of persons
whether incorporated or not, but subject to sub-section (2), shall not be
entertained by the BSC unless made by the person affected or by a person
authorised by him to make the complaint for him."
30. A "fairness complaint" is defined as meaning a complaint of any of the
matters referred to in s.110(1) and so it applies to complaints of both unjust
or unfair treatment and unwarranted infringement of privacy.
31. Mr Pannick accepts that if the complaint had been by Dixons on behalf of
their staff, the BSC would have had jurisdiction. However, having regard to
the terms of Lady Howe's affidavit, he says that was not what happened here.
He considers that s.111(1) does no more than identify who is entitled to make a
complaint. It provides no help as to whether a company can make a complaint on
its own behalf. This is a very restricted interpretation of s.111(1).
32. Undoubtedly a company can be unfairly treated. If unfairness of this sort
can be the subject of a complaint to the BSC by a company, I consider that this
is a strong indication that a company can also make a complaint about the
infringement of its privacy. I can see nothing in the language of
the Act
which would prevent a company complaining of unfairness.
33. While the intrusions into the privacy of an individual which are possible
are no doubt more extensive than the infringements of privacy which are
possible in the case of a company, a company does have activities of a private
nature which need protection from unwarranted intrusion. It would be a
departure from proper standards if, for example, the BBC without any
justification attempted to listen clandestinely to the activities of a board
meeting. The same would be true of secret filming of the board meeting. The
individual members of the board would no doubt have grounds for complaint, but
so would the board and thus the company as a whole. The company has
correspondence which it could justifiably regard as private and the
broadcasting of the contents of that correspondence would be an intrusion on
its privacy. It could not possibly be said that to hold such actions an
intrusion of privacy conflicts with the ECHR.
B. Was there an unwarranted infringement of Dixons' privacy?
34. Accordingly, to provide no protection under
the Act for activities of a
company of this nature would leave a company at a disadvantage under
legislation designed to encourage and achieve proper standards of conduct.
This is most unlikely to be what Parliament intended. Without therefore
giving any indication of my view as to the proper application of Article 8 of
the ECHR to companies, I consider that the BSC had jurisdiction to determine
the complaint made by Dixons. The Act extends to unwarranted interference with
the privacy of a company.
35. If there was an interference with Dixons' privacy, then it is not disputed
that it is unwarranted. It is the practice of the BSC to consider first
whether there is any infringement of privacy and then, only if there is such an
infringement, to decide whether or not it is unwarranted. This practice of
adopting a two stage approach has advantages. There is no need to consider
whether an alleged interference is warranted if the BSC come to the conclusion
that there is no infringement. However, it is important to recognise that the
two stages are closely linked. If the infringement is limited, it will be much
easier to establish that it is warranted. If the infringement is gross,
justification will be more difficult to establish.
36. The approach of the BSC to secret filming is that it requires some
justification. It should not be done at will. The passages cited from their
decision makes clear that the BSC considered that the BBC had fallen down on
proper standards because they were secretly filming without taking the
precaution of seeing whether there is any justification for doing this. Their
decision makes it clear that their approach was that a company and an
individual can properly object to "cavalier" secret filming at the premises of
a company as well as those of a private individual. It may be a place to which
the public have access, but the fact that the filming will also involve the
filming of the public may make it more of an infringement of the company's
interests than filming at a place where the public do not have access. On the
BSC's approach the company has its own interests which can warrant protection
as to the way its staff conduct themselves. On its own behalf it can
reasonably object to its employees being filmed secretly without cause.
37. Mr Pannick submits that the fact that the filming was secret does not add
anything to the filming. I disagree. The fact that it is clandestine can add
an additional ingredient. Both the code and the BBC's own guidance recognise
that clandestine filming is regarded as objectionable. The fact that it is
secret prevents those who are being filmed from taking any action to prevent
what they are doing being filmed. In this case, it is reasonably clear that,
if Dixons had been aware of the filming, they would have regarded it as
objectionable. The filming was on their property and although the public were
invited to the premises the invitation was not in relation to secret filming.
38. This is very much a case in which the BSC, in giving that decision, were
performing that role of setting standards of what is acceptable and what is not
acceptable conduct. This was in an area where the courts, for reasons already
explained, should be particularly hesitant about intervening. I would not
interfere with the decision of the BSC on this secret filming. The decision
was well within the BSC's discretion. I do emphasise that the degree of
infringement was limited and that therefore the justification which would be
required on the part of the BBC to avoid an adverse finding would be very
modest. However, I am not concerned with adequacy of the justification relied
upon by the BBC. The BBC accept the judges' decision that the adjudication of
the BSC that the filming was unwarranted is not open to objection.
39. I would allow the appeal and restore the adjudication of the BSC.
LADY JUSTICE HALE:
40. I agree that, for the reasons given by the Master of the Rolls, this appeal
should be allowed. However, lest it be thought that this case might have a
wider relevance than the present context, I wish to emphasise the
considerations which have been most persuasive with me.
41. The provisions of
the Act are quite clear. A 'body of persons, whether
incorporated or not' has the right to make a fairness complaint: s.111(1). A
fairness complaint is a complaint in respect of any of the matters in
s.110(1)(a) [unjust or unfair treatment] and (b) [unwarranted infringement of
privacy]: s.110(4). Complaints can only be made by or on behalf of a 'person
affected': s.111(1). The 'person affected' is defined in relation to
infringements of privacy as 'a person whose privacy was infringed': s.130(1).
The words 'where the person affected is an individual . . . ' in s.111(2) and
(3) clearly contemplate that a person affected may not be an individual. This
is not surprising in the light of the well known provision in Schedule 1 to the
Interpretation Act 1978 that '"Person" includes a body of persons corporate or
incorporate'. It is, I acknowledge, surprising that s.111(2) and (3) also refer
to a 'person or body', but had the draftsman intended to confine a 'person
affected' to an individual he could and, in my view, would have done so.
42. The Act's concept is 'privacy'. The ECHR concept is 'respect for his
private and family life, his home and his correspondence' (art 8(1)). While
'private life' may bring with it certain nuances it is not obvious that
'privacy' should always do so. Privacy is a difficult word for which to find
synonyms (let alone to define by examples of interference, as the Reports cited
to us acknowledge) but the Concise Oxford Dictionary includes 'avoidance of
publicity' and it obviously has some connection with being or keeping
'private'. There are many things which companies may (legitimately or
illegitimately) wish to keep private, including their property, their meetings,
and their correspondence. There are still more about which they may
(legitimately or illegitimately) wish to avoid publicity.
43. I accept that it is open to the BSC to hold that secret filming of an
individual for potential use in broadcasting is in itself an infringement of
that individual's privacy (although it may well be warranted). Notions of what
an individual might or might want to be kept 'private', 'secret' or 'secluded'
are subjective to that individual. Someone who had declared publicly that he
would 'never be seen dead' in Dixons, or who did not wish it to be known that
he was buying a present for his wife there, might have excellent reasons for
wanting to keep secret a visit to Dixons but be quite relaxed about a visit to
an Ann Summers shop. For others, the position would be the reverse. The
infringement consists in depriving the person filmed of the possibility of
refusing consent. If this is so for an individual, I cannot see why it should
not also be capable of being so for a company. The company will have its own
reasons (good or bad) for wanting or not wanting to object and the secrecy of
the filming has deprived it of the opportunity to do so.
44. I also attach particular weight to the context, which is not only the
secret filming without consent but also the
potential use in the mass
media without consent. Furthermore, we are not talking about legal rights
but broadcasting standards. If there is a good reason for the infringement then
it will not be unwarranted. All this seems to me to justify a wider view of the
ambit of privacy than might be appropriate in some other contexts. There may
well be contexts in which the concept should be limited to human beings, whose
very humanity is defined by their own particular consciousness of identity and
individuality, their own wishes and their feelings. But that debate is for
another day.
LORD MUSTILL :
45. I concur in the opinion that this appeal should be allowed, but wish to add
some words of caution on what I believe to be the most difficult aspect, which
is whether the concept of an invasion of privacy can have meaning when applied
to a corporate body.
46. Although the expression "fairness complaint" appears to echo the words
"unjust or unfair treatment" in section 110(1)(a) of the Act, there is no doubt
that a complaint may also concern an unwarranted infringement of privacy:
section 110(4) says so. Moreover, of the two capacities in which a person may
feature on the complaining side of the procedure-namely, as "complainant" and
as the "person affected" (or both)- it is equally clear that a corporate body
may act as complainant: again, section 111(1) says so. This presents no
conceptual problems, for a corporate employer may wish to present a complaint
on behalf of an individual employee, just as much for an invasion of privacy
as for unfairness. Nor is there any difficulty where a body puts forward a
complaint on its own behalf under section 110(1)(a), for a corporation as well
as an individual may be unfairly treated. The Act does not, however, explicitly
address the position under section 110(1)(b). Can a company say that it is
aggrieved by an invasion of its own privacy? As a matter of ordinary language I
would not have thought so. The context in which the question must be asked for
present purposes is, however, special in two respects. First, in terms of
textual analysis, conclusions may be drawn from the terminology of section 111,
where the legislature refers both to "a person" and "an individual", which
suggests that the former is intended to embrace both a corporate and a natural
"person". The point is however weakened by the use in sections 111(2) and (3)
of the expression "person or body", a usage which assumes that a body is not a
person. For my part I am not confident that the language of Part V is
sufficiently consistent, on its own, to force on the concept of privacy a
meaning which it would not otherwise have. What does, however, enable me to
concur in the application of the complaints procedure to the present case is
the purpose of the Act. The task of the Commission is not to declare and
enforce sharp-edged legal rights but rather to establish and by admonishment
uphold general standards of decent behaviour. A regime of such breadth could
well seem incomplete if it were to leave unremarked the type of conduct which,
if aimed at an individual, would have been within its purview, simply on the
ground that the victim was a company. I can therefore accept an expanded
reading of privacy for this special purpose, enabling the Commission to take
notice of acts which, if the victim had been a natural person, would clearly be
within its remit.
47. Having reached this far there is in my view no problem with the remaining
issues. To make its powers useful in what is essentially an area of personal
judgment and good taste the Commission must have been intended to have a wide
margin of appreciation, and I have no doubt that the margin was ample to cover
the present case.
48. I do, however, wish to emphasise the degree to which this conclusion is
dependent on the language and purpose of this particular statute, for in
general I find the concept of a company's privacy hard to grasp. To my mind the
privacy of a human being denotes at the same time the personal "space" in which
the individual is free to be itself, and also the carapace, or shell, or
umbrella, or whatever other metaphor is preferred, which protects that space
from intrusion. An infringement of privacy is an affront to the personality,
which is damaged both by the violation and by the demonstration that the
personal space is not inviolate. The concept is hard indeed to define, but if
this gives something of its flavour I do not see how it can apply to an
impersonal corporate body, which has no sensitivities to wound, and no selfhood
to protect.
49. There will, it is true, be many occasions where grounds for complaint
maintainable by a company will be of the same kind as those which could be
presented by an individual as a breach of privacy. For example the clandestine
copying of business documents would be actionable by a company and an
individual alike as civil wrongs, amounting to a breach of confidentiality
copyright and the like. But privacy and confidentiality are not the same. For
example, the reading and copying of personal diaries, letters to relatives or
lovers, poems and so on could ground not only an allegation of tortious conduct
but also an additional complaint that the privacy of the writer and perhaps
also of the recipient have been intruded upon. Such conduct is specially
objectionable, not because legal rights have been infringed but because of the
insult done to the person as a person. No such complaint would, I believe, be
feasible when made by a company, not for the obvious reason that a corporation
does not create documents of this kind, but because an intrusion into such
matters has an extra dimension, in the shape of the damage done to the
sensibilities of a human-being by exposing to strangers the workings of his or
her inward feelings, emotions, fears and beliefs- a damage which an artificial
"person", having no sensibilities, cannot be made to suffer. A company can
have secrets, can have things which should be kept confidential, but I see this
as different from the essentially human and personal concept of privacy.
50. Further than this it would be inappropriate to go. A general appreciation
of privacy is not called for by the present appeal. My purpose is simply to
emphasise that when it becomes necessary to consider the question in the much
wider context of human rights, as it surely will, there may well be room for
more than one opinion about what the concept entails.
Order: Appeal allowed with costs. Leave to appeal to House of Lords
refused.
(Order does not form part of the approved judgment)