Full case report

A & B v Channel Four

Reference [2005] EWHC 3522 (Fam); [2007] 1 FLR 678
Court Family Division (Newcastle District Registry)

Judge Munby J

Date of Judgment 6 Jul 2005


Summary

Privacy – Injunctions – Covert filming of children in schools – Article 8 – Article 10 – s.12 Human Rights Act 1998


Facts

Channel 4 intended to broadcast a programme in its Dispatches series about the conditions in British schools. A supply teacher had secretly recorded footage of 4 schools, 2 in Islington and 2 in Leeds. Cs were two 15-year-old pupils at one of the Leeds schools. They sought an injunction to prevent C4 from transmitting any footage of them as part of the programme claiming that they had a reasonable expectation of privacy at school and that showing footage of them on the programme would be a misuse of confidential information. C4 contended that the interference with the Cs’ Article 8 rights was limited because their faces would be obscured in the programme. The footage of the children in the schools was essential to the thesis of the programme and that any interference with the Cs’ Article 8 rights was legitimate and proportionate in pursuance of various Article 10 and Article 8 interests of others.


Issue

(1) Whether the Cs had an arguable cause of action for misuse of private information (2) If so, whether the interference with the Cs’ Article 8 rights was outweighed by other Article 10 and 8 considerations (3) Having performed that balance at the interim stage, whether under s.12 Human Rights Act the Cs could show that they were “likely” to succeed at trial (4) Whether – following Cream Holdings v Banerjee – the Court should nevertheless restrain transmission of the relevant footage for a short period to allow further argument/evidence.


Held

Injunction refused. (1) There was an arguable cause of action for misuse of private information. Cs were filmed at school in circumstances where they had a reasonable expectation of privacy. The pupil/teacher relationship was arguably akin to the doctor/patient, lawyer/client, banker/customer relationship. (2) Having watched the programme, the Judge was satisfied that there was a substantial public interest in the programme. To remove the covert footage would dismember the programme and deprive it of its core evidence. Not only would this represent a substantial interference with C4’s Article 10 rights, but would be an interference with viewers, parents and other interested persons’ rights to receive the information about the conditions in the schools.(3) The balance came down heavily in favour of the Article 10 rights. Cs were not likely to succeed at trial. (4) Cs’ position would be no better with any further evidence. This was not an exceptional case within Cream Holdings.


Comment

According to Wainwright, there is no free-standing cause of action for privacy, but the “shoe-horning” of privacy into breach of confidence carries on at pace. The Court considered that it was not necessary to identify any particular information that would be disclosed in the footage and then go on to consider whether that information was confidential. The case proceeded on the basis that the nature of the teacher/child relationship cloaked all in privacy/confidence and that even with the identities of the Claimants obscured there was a substantial interference with the Claimants’ Article 8 rights. However, in this instance, given the important public interest in the programme those rights had to give way to the Article 10 rights of broadcaster and viewer and the Article 8 rights of the children in the respective schools whose education was being impeded by the chaos in their classrooms.


Instructing Solicitors

Olswang for Channel Four


Links

Channel Four Dispatches - Undercover Teacher
Judge supports TV undercover schools exposé - Press Gazette
Judgment
Lessons through a lens - The Guardian
The pupil shrieked: 'Don't make me hurt you. I swear to God I'll do it' - Sunday Telegraph