Guest Post: The media, corporate responsibility and TV reality shows

Dr Steve Foster, Principal Lecturer in Law at Coventry University Law School, contributes to today’s guest post:

Although corporate social responsibility is usually linked with large profit-making commercial entities, it should not be forgotten that the private media are subject to various legal and ethical duties whilst carrying out their business operations. In the United Kingdom, the media are not public authorities under the Human Rights Act 1998, despite them carrying out what many regard as a public obligation in informing the public on matters of collective interest. Such organisations owe their legal duties through the general civil and criminal law, and these legal obligations are augmented by various codes of practice issued by regulatory bodies. The media are also, indirectly, subject to human rights law, as the courts, as public bodies under the Human Rights Act, must ensure that human rights principles enshrined in the European Convention on Human Rights are applied in all disputes which affect the human rights of the parties. As a matter of fact, the case of Peck v United Kingdom reminds broadcasting and public authorities that they owe duties under the European Convention.

As a consequence of the above, the media owe legal and moral duties which can be classified as responsibilities linked with corporate social responsibility. This includes the duty to follow principles of responsible journalism and to abide by national and international laws protecting the privacy and family rights of individuals affected by their publications and broadcasts. These principles were highlighted in a recent High Court decision in Ali v Channel 5 Broadcast Ltd [2018] EWHC 298 (Ch), a case involving a claim that the broadcast of a reality TV show, and which addressed the question whether such programmes can be broadcast irrespective of the harm or embarrassment caused to an individual whose illegal or anti-social behaviour has been exposed by the programme. The decision has reminded us that broadcasting companies need to be careful in balancing individual privacy with their desire to inform the public on matters of public interest; and thus must comply with basic principles of responsibility and professional standards.

THE FACTS AND DECISION

In this case, as a result of rent arrears, the claimants’ landlord had obtained a possession order for the property they occupied and the local housing authority advised them to wait until eviction before they could be rehoused. The landlord obtained a High Court writ of possession and when enforcement officers attended the property to evict the claimants they were accompanied by the defendant’s film crew; the landlord’s father also attended. The first claimant, who was the voluntary media secretary of a Muslim political party, was awoken as they entered the property and was given an hour to vacate. The second claimant returned after taking her children to school. Various exchanges took place during the hour, but shortly before they vacated the first claimant agreed to be interviewed. Subsequently, the landlord’s father posted on social media two videos he had recorded of the eviction. The defendant then broadcast edited footage as part of a series of programmes called “Can’t Pay? We’ll take it away“. The programme containing the claimants was seen by 9.65 million viewers and the claimants’ daughter suffered bullying at school as a consequence.

The claimants contended that the programme included filming of them in their home, in distress and being taunted by the landlord’s father, and was thus in breach of their right to respect for private and family life under article 8 of the European Convention on Human Rights. The defendant argued that the programme addressed matters of real public concern, namely the public reporting of increased levels of debt, dependence on housing benefit and the effect of enforcement of writs of possession by High Court enforcement officers. The High Court gave judgment for the claimants. The claimants had a reasonable expectation of privacy in respect of the information in question and thus their article 8 rights were engaged. Further, in the court’s view, the principle of open justice did not justify the broadcasting of information beyond the bare fact of the eviction. Nor, in the court’s view, could the impact on the claimants’ children be justified by reference to open justice. The broadcasting of the information was not a foreseeable consequence of the claimants’ failure to comply with the possession order.

Further, although the claimants and their children had already suffered damage to their privacy as a result of the social media postings that did not mean that broadcasting the programme either could not or did not inflict further damage given the substantial scale and duration of the broadcasting. The Court found that at no stage during the eviction had anyone informed the claimants that the film crew was filming a programme for the defendant television company; the first claimant having been woken up was clearly drowsy and confused and had not been in a fit state to give informed consent. Although he was in a fit state to do so by the time he agreed to be interviewed, he could not be taken retrospectively to have given his consent to the broadcasting of material filmed when he was not in a position to consent. The first claimant had agreed to be interviewed only after twice objecting to filming without avail and this did not amount to true consent; in effect, it was an agreement to participate under protest. 

On balancing the claimant’s article 8 rights with the defendant’s rights to freedom of expression, although the court accepted that the programme contributed to a debate of general interest, it found that the inclusion of the claimant’s private information went beyond what was justified for that purpose. The programme’s focus was not on the matters of public interest, but on the drama of the conflict between the claimants and the landlord’s father. Moreover, that conflict had been encouraged by one of the enforcement officers to “make good television.” Although the defendant had editorial discretion as to the way in which it told the story, that discretion did not extend to its decision to include the private information of which the claimants’ complained unless it was justified as contributing to a debate of general interest. On the facts, the balance came down in favour of protecting the claimants’ article 8 rights. Applying the standards that had been laid down in the case of Gulati v MGN Ltd [2015] EWHC 1482 (Ch), the court awarded each claimant damages of £10,000. This was to compensate the claimants for the distress caused by the broadcasting of the eviction; the court accepting that the programme involved the disclosure of the claimant’s private information to 9.65 million viewers, that the information was fairly sensitive and that the programme had a voyeuristic quality.

THE EFFECT OF ALI ON BROADCASTING STANDARDS

The decision raises questions and offers some guidance on how broadcasting authorities, and the media generally, need to accommodate the right of individual privacy when carrying out their broadcasting and other duties. The key is proportionality, and a careful balancing of conflicting interests so as to show that any interference is necessary in a democratic society, as required by Article 8(2). Another key factor is the extent to which the broadcast or other public dissemination serves the public interest. In this sense, the court’s finding in Ali that the programme, albeit made for public interest purposes (an investigation into debt), was not focussed was on those matters of public interest, but rather on the drama of the conflict between the claimants and the landlord’s father, is interesting; and will be of concern to broadcasters and the media generally. The court’s finding that the incident was covered in a way to make “make ‘‘good television’’ was pivotal and thus reduced the public interest in making and broadcasting the programme. This distinction will often be very difficult to maintain in practice, as many public interest stories are presented with mixed motives – to inform the public and to score political or personal points.

Ali imposes standards of responsible broadcasting on programme-makers, which is to be welcomed. Such standards are imposed by broadcasting authorities; and by the courts in areas such as defamation, contempt of court and indeed in privacy actions generally, and the decision in the present case merely takes into account the purpose of the programme to entertain in reducing the public interest nature of the broadcast.  Provided programmes made by certain companies, and broadcast on certain channels, are not assumed to have been made for purely financial or prurient reasons, then the courts should be able to avoid making decisions that are unfair or unprincipled and detrimental to media freedom and editorial judgment. Nevertheless, the decision in Ali will be met with great concern by programme-makers who seek to combine public education and entertainment.

CONCLUSIONS

The decision in Ali is a reminder to broadcasters, and the media generally, that they must carry out their duties in a responsible manner and mindful of an individual’s privacy and Convention rights. This is spelt out in various broadcasting codes and is part of their ethical training It is suggested that in this case it was appropriate to interfere with the editorial judgment of the media and thus protect individuals from an unreasonable and unnecessary intrusion into their private lives. Provided the media practice responsible reporting and broadcasting, then these actions should not intrude too greatly on broadcasting freedom; and will, in fact, encourage greater professionalism and corporate responsibility.