A good story is always more dazzling than a broken piece of truth – Diane Setterfield, The Thirteenth Tale
Broadcasters regard certain industries as fair game for undercover investigation. Schools , hospitals , care homes  and call centres , to name a few, have been the target of secret filming in recent years. It is said to be part of justifiable investigative journalism that is in the public interest.
Whatever your field of practice, you could get the call, perhaps on a Sunday afternoon at home. The client has known about the filming for some time and has been trying to sort it out on their own. A producer is asking for a comment on a story that is to be broadcast the following Wednesday. The programme will focus on alleged malpractice in your client’s industry. It is said your client is implicated. The producer alludes to the programme, including secret footage.
The client has just completed its annual summer vacation scheme for students. After a few days on the scheme, one student had left for no apparent reason. ‘We did wonder,’ your client comments wryly, ‘why she was always wearing a large brooch.’
In fact, the student was an undercover journalist who secretly filmed your client’s business. That the ‘student’ gained admission under false pretences is no bar to the broadcast of the programme. This might be the first surprise for you and your client.
The court’s task is to balance the broadcaster’s right to freedom of expression, meaning in this context the freedom of the press (article 10 of the European Convention on Human Rights), with the client’s right to privacy, particularly if they, their employees or customers are filmed in places or circumstances that are, on any objective view, private (article 8). Their right to privacy may be outweighed by the public interest in being told the story.
Case law suggests the following factors, among others, would weigh in favour of the undercover footage being broadcast, that is article 10 considerations would outweigh those of article 8:The second surprise is that there is no entitlement to see either the proposed programme or the secret footage. Your client has asked – and you now ask as well – but the broadcaster refuses point blank. Moreover, if you go to court, the broadcaster will not usually be required to show the programme, even to the judge.
- If the footage disclosed serious issues of public interest not otherwise in the public domain, for example, through regulatory reports; and
- If those filmed consented to the broadcast.
Even so, the client is pressed for comment on the issues said to be thrown up by the footage, which have only been described in general terms. Here comes the third surprise: there is no basis on which courts can be asked to intervene to ensure the broadcast is fair and balanced. Your client, if it chooses to comment, is likely to have to do so ‘blind’.
You perhaps feel out of your depth, and worried about the consequences of getting involved – and getting it wrong. If there are grounds for making an application for an injunction to restrain the broadcast of the programme, it must be made to the High Court in urgent circumstances on notice to the broadcaster. Most often, the application will cause further dislocation to the client’s business as key employees’ and often clients’ days are spent in court.
From your perspective, not only must you find specialist counsel who is available you must also advise the client of the permutations and risk, especially on costs. It is daunting. You will not have seen the secret footage, while coordinating the application and evidence. You may be up against the experienced legal department and deep pockets of a national broadcaster, which is ready to take risks for the sake of another legal precedent to add to its armoury.
But then you worry about the consequences of not getting involved. Where else is your client going to go at such short notice? Naturally, the client is concerned about its own reputation. But it is also concerned about its obligations to its workers and customers and safeguarding their right to privacy.
In BKM, a care home applied for an injunction to protect its elderly residents from exposure on national television. It was not disputed in that case that the undercover journalist’s access was obtained fraudulently and that she filmed without consent. However, the judge refused to grant an injunction. The residents and their families were told what the filming was said to have uncovered. They wrote to the BBC to say they trusted the home to deal with any issues, and said that they did not under any circumstances agree to the undercover film being broadcast.
Under Ofcom guidelines, secret filming must be justifiable not only before it is undertaken (if there is evidence of a story in the public interest) but also at the time the broadcast is put together. The secret film actually obtained must be ‘material’ and its broadcast must be judged to be in the public interest. Film gained by secret filming and recording should only be broadcast when it is warranted. If it is not, the Ofcom guidelines say it should not be used. The BBC’s refusal to allow the judge or the care home’s lawyers to see the secret footage in BKM meant that the question of whether the filming was in fact justifiable had to be considered by the court in the abstract.
It is difficult to predict when the balancing exercise conducted by a court, between the media’s right to freedom of expression and the individual’s right to privacy, will fall in favour of an injunction to stop the broadcast. The judge in BKM was careful to express no concluded view as to the ultimate merits of the case. In addition, he had to make a decision in urgent circumstances, literally hours before the proposed broadcast and without the evidence of the parties being tested.
Despite the BBC’s assurances that residents would not be identifiable, when the programme was broadcast it became clear that the actual level of pixilation of images and distortion of voices used was relatively low. People were able to identify themselves and their loved ones, causing distress and humiliation. Residents were filmed in bed and heard talking about their intimate care and needs.
Is ‘a good story’ worth this much? Cases like BKM raise questions:With our society’s current obsession with ‘reality TV’ and distrust of government and regulators, there is surely more to come from the courts in this area.
- Where those who have been secretly filmed (for example, care home residents, patients in a hospital, children at school, employees in the workplace) are innocent of the point being made by the programme (for example, perceived failure of regulation), under what circumstances do the media have the right to publish the material?
- Are there some circumstances where the broadcaster should be restricted to re-enactment, or a piece to camera where the journalist explains what he or she witnessed undercover?
- How much distortion/alteration of the footage may be insisted upon to protect the innocent? Can the innocent victims insist that their image and voice pattern be made unrecognisable even to themselves or their close friends?
- Does this kind of filming constitute 'abuse' where those filmed are vulnerable people or children?
- What can or should be done to limit the invasion of privacy of innocent parties?
- When does this amount to curtailing the media’s freedom of expression?
- How best should organisations respond if it happens to them?
Alison Castrey is a solicitor specialising in the law relating to care businesses and Madeleine Heal is a barrister specialising in commercial IP and media law