Full case report
BKM Ltd v BBC
Reference  EWHC 3151 (Ch)
Court Chancery Division
Judge Mr Justice Mann
Date of Judgment 3 Dec 2009
Injunctions – Privacy – Article 8 – Freedom of expression – Article 10 – Human Rights Act 1998, ss. 12(3) and (4)
BKM, who operate a care home in Wales, sought to restrain a broadcast by the BBC of a programme which included footage surreptitiously obtained from the home, the contents of which were unknown. The programme was to focus upon the shortcomings in the standards maintained at the care home. The BBC agreed to pixelate the faces of residents.
Whether an injunction should be granted so as to restrain broadcasting of the secretly obtained footage
Declining to grant the injunction sought:
(1) No adverse inference was to be drawn against the BBC by its failure to show the footage to the Applicant or the Court;
(2) While the resident’s Article 8 were engaged and were not removed by the taking of cinematic steps to obscure identities, any invasion of privacy was likely to be relatively slight;
(3) There were serious factors which justified or out-balanced any infringement of privacy rights, in particular there was a clear public interest in the standards in care homes and the ability of a regulator to maintain those standards;
(4) The Applicant failed to discharge its burden under sections 12(3) and (4) of the Human Rights Act.
The judgment is a useful illustratration of a media defendant successfully justifying the use of clandestine filming techniques.
Alison Castrey Ltd for the Claimant; BBC Legal Department for the Defendant
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.