Law Report: Television programmes infringed parents' privacy: Regina v Broadcasting Complaints Commission, ex parte Granada Television Ltd - Queen's Bench Division (Mr Justice Popplewell), 21 May 1993

The Broadcasting Complaints Commission did not act unreasonably in concluding that a television programme had infringed complainants' privacy notwithstanding that the material shown in the programme was already in the public domain.

Mr Justice Popplewell refused an application by Granada Television Ltd for judicial review of decisions of the commission upholding complaints in respect of two separate World In Action programmes. The complaints fell into three groups:

(1) Complaints by parents upset by the showing, without prior warning, of their deceased children, one of them as a murder victim in 'How Safe Are Our Children?', broadcast on 11 February 1991, and one as the alleged victim of 'The Allergy Business', about which there was a broadcast on 15 October 1990. In each case, the parents complained that the showing of the film without prior warning unwarrantedly infringed their privacy.

(2) Complaints by interviewees that the makers of 'The Allergy Business' programme had unfairly edited the interviews to present the opposite of their actual opinions.

(3) A complaint by a parent that the same programme wrongly presented the facts about the death of her son.

Under section 143 of the Broadcasting Act 1990: 'The function of the BCC shall be to consider and adjudicate upon complaints of (a) unjust or unfair treatment in programmes . . . or (b) unwarranted infringement of privacy in or in connection with the obtaining of material included in such programmes.'

Nicholas Chambers QC and Andrew Caldecott (Goodman Derrick) for Granada; David Pannick QC (Gregory Rowcliffe & Milners) for the BCC.

MR JUSTICE POPPLEWELL said it was argued for Granada that there could be no infringement of privacy by showing material which had been previously broadcast and was already in the public domain and that, if there was infringement, it was not 'in' the programme.

'In the programme' had to be contrasted with 'in connection with' and if there was infringement it was as a consequence of the programme. Accordingly, it was said, it was not open to the commission under section 143 to decide that there had been an unwarranted infringement of privacy.

For the commission, it was argued that Parliament had deliberately given no definition of infringement of privacy in the Act and had neither expressly nor impliedly excluded matters already in the public domain. It was for the commission to determine the matter in each particular case.

In his Lordship's judgment, however, it was quite impossible to give a satisfactory definition of what did or did not constitute infringement of privacy. What had to be decided was whether the view adopted by the commission was unreasonable, as defined in the Wednesbury case ((1948) 1 KB 223).

Here, the commission was perfectly entitled to decide that, even though the matter had been previously reported, there was still an infringement of privacy.

Moreover, it seemed to be just as unwarranted an infringement of privacy to publish something private about a person who took part in a programme as it was if that person was not taking part but heard or read about it subsequently. It was clear the Act was designed to prevent infringement of privacy by material contained in a programme.

It was irrelevant whether the person whose privacy was infringed took part in the programme, or even whether he saw it. It was publication that was at the heart of the matter.

As to the second head of complaint, his Lordship was satisfied, having considered the material, that the commission was perfectly correct to decide that the complainants' contributions had been unfairly edited.

On the third issue, his Lordship adjourned the matter to enable the commission to give it further consideration, since it appeared on the face of its findings that the commission had not fully dealt with the issue.

Paul Magrath, Barrister