Reference:  EWHC 3151 (Ch)
Court: Chancery Division
Judge: Mr Justice Mann
Date of judgment: 3 Dec 2009
Summary: Injunctions - Privacy - Article 8 - Freedom of expression - Article 10 - Human Rights Act 1998, ss. 12(3) and (4)
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Instructing Solicitors: Alison Castrey Ltd for the Claimant; BBC Legal Department for the Defendant
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.