Full case report

T (by her litigation friend the Official Solicitor) v BBC

Reference [2007] EWHC 1683 (QB)
Court Queen’s Bench Division

Judge Eady J

Date of Judgment 11 Jul 2007


Summary

Injunction – Privacy – Vulnerable adult – Inability to consent – Right to private life – Right to freedom of expression – Articles 8, 10 ECHR


Facts

T was a vulnerable adult with an IQ of 63 whose two year old daughter was made subject to a care order and adopted. The BBC made a documentary about her experience and filmed key events in the adoption process. The BBC obtained T’s consent prior to her involvement in the filming. T was then deemed incapable of giving consent either to participation in filming or to broadcast of the documentary. The Official Solicitor, acting on T’s behalf, sought an injunction to prevent identification of T in the documentary on the grounds that broadcast would invade T’s Article 8 rights.


Issue

(1) Whether the court was required to determine as a preliminary matter whether broadcast would be in T’s best interests;

(2) Whether, in assessing the potential violation of T’s Article 8 rights, the court was required to predict outcomes in order to quantify the risks to T’s welfare which would arise from broadcast;

(3) Whether the invasion of T’s privacy outweighed the invasion of the BBC’s Article 10 rights an injunction would represent.


Held

Granting the injunction:

(1) Applying Re A Local Authority Inquiry: Restraint on Publication [2004] Fam 96, no preliminary assessment of ‘best interests’ was necessary;

(2) It was unnecessary to predict outcomes in order to quantify risks to T’s welfare. A risk, or potential harm, is sufficient;

(3) The value of the BBC’s freedom of expression could not be proportionate to the invasion of T’s privacy and autonomy in this case. Although the broadcast concerned a matter of genuine public interest, the film did not (contrary to some of the evidence) present T in a positive light. Moreover there was a real possibility that T would be greeted with a hostile and abusive reaction by viewers who recognise her.


Comment

In deciding that there was no need to assess T’s best interests as a preliminary matter, the judge rejected the approach taken in a similar case by Munby J (see E v Channel 4 Television [2005] EWHC 1144 (Fam); [2005] EMLR 709). Moreover, the difficulties faced by broadcasters in making programmes of this sort is underlined by the approach taken by the judge: it is unnecessary for the applicant to prove that adverse consequences are likely to arise from broadcast – all that needs to be shown is a ‘risk’, even where the subject matter is serious and of high public interest.


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Instructing Solicitors

Pearson Hinchliffe for T; BBC Litigation Department for the BBC