R v Broadcasting Standards Commission, ex parte British Broadcasting Corporation
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE,the Master of the Rolls,LORD MUSTILL |
| Judgment Date | 06 April 2000 |
| Neutral Citation | [2000] EWCA Civ 116 |
| Docket Number | Case No: QBCOF 1999/0779/C |
| Court | Court of Appeal (Civil Division) |
| Date | 06 April 2000 |
[2000] EWCA Civ J0406-22
The Master of the Rolls
Lady Justice Hale and
Lord Mustill
Case No: QBCOF 1999/0779/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
(MR JUSTICE FORBES)
ON APPEAL FROM QUEEN'S BENCH DIVISON
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)
Lord Woolf MR :
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".
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.
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.
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.
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.
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.)
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."
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."
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.
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
As the BSC's title makes clear, they are concerned with trying to achieve proper standards of conduct by the section of the media...
To continue reading
Request your trial
-
Michael Noel James Hosking and Marie Angela Hosking v Simon Runting and
...that members of the expert commission in that situation had compared with the courts; R v Broadcasting Standards Commission ex parte BBC [2001] QB 885, para [195] I have already mentioned some of the specific legislative regulation of particular technologies designed to protect individuals ......
-
Campbell v MGN Ltd
...Hellewell v Chief Constable of Derbyshire [1985] 1 WLR 804, 807. As Lord Mustill said in R v Broadcasting Standards Commission, Ex p BBC [2001] QB 885, 900, "An infringement of privacy is an affront to the personality, which is damaged both by the violation and by the demonstration that th......
-
Murray v Big Pictures (UK) Ltd
...of Derbyshire [1995] 1 WLR 804, 807. As Lord Mustill said in R v Broadcasting Standards Commission, Ex p British Broadcasting Corpn [2001] QB 885, 900, “An infringement of privacy is an affront to the personality, which is damaged both by the violation and by the demonstration that the pers......
-
Campbell v MGN Ltd
...being photographed or of refusing her consent to being photographed. 104 In R.v. Broadcasting Standards Commission ex parte B.B.C. [2001] Q.B.885 per Lord Woolf M.R. at p.898 and per Hale L.J. at p.899. "Lord Woolf M.R. 37. Mr Pannick submits that the fact that the filming was secret does n......
-
Recent Judicial Decisions
...Journal. Volume 75 (2002) 265 Broadcasting Standards Commission, ex p. British BroadcastingCorporation, The Times, 12 April 2000; (2000) 3 WLR 1327.Article 8.2 provided an exception where the interference wasfor the prevention of disorder or crime. However, it was arequirement of article 8.......
-
Whither breach of confidence: a right of privacy for Australia?
...might provide stronger protection of corporate privacy interests than the Convention requires in R v Broadcasting Standards Commission [2001] QB 885, 893-4 (finding that the BBC breached its statutory obligation to respect a corporation's privacy by secretly filming its activities; the posi......
-
A Potential Framework For Privacy? A Reply To Hello!
...referring to art 17 of the International Covenant on Civil and Political Rights); RvBroad-casting Standards Commission, ex p BBC [2001] QB 885, [42] (Hale LJ, referring to art 8(1) of theECHR).260 n 8 above, at [19 0].261 ibid,at [32 8].262 RvBroadcasting StandardsCommission, ex p BBC [2001......
-
TORTIOUS INTRUSIONS UPON SOLITUDE AND SECLUSION
...86Brooker v Police[2007] NZSC 30; [2007] 3 NZLR 91 at [123], citing Campbell v MGN Ltd[2004] 2 AC 457 at [50], per Lord Hoffmann. 87[2001] QB 885. 88R v Broadcasting Standards Commission, ex parte British Broadcasting Corp[2001] QB 885 at [48]. 89[2007] NZCA 52; [2007] 3 NZLR 207. 90R v Wil......