X v BBC and Lion Television Ltd
Reference:  CSOH 80
Court: Court of Session, Outer House
Judge: M G Thomson QC (sitting as a Temporary Judge)
Date of judgment: 22 Jun 2005
Summary: Injunction - Privacy - Article 8 - Confidence - Freedom of expression - Article 10 - s.12(3), Human Rights Act 1998 - Broadcasting
Download: Download this judgment
Instructing Solicitors: John McGovern & Co for the Pursuer; BBC Scotland Legal Dept for the BBC; Boyds for Lion
The BBC commissioned Lion Television Ltd to produce a documentary film about the work of Glasgow Sheriff Court. During the making of the documentary, Lion filmed Miss X and her friend Miss Y in the immediate vicinity of the court. Miss X was there to support her boyfriend. She was recorded talking to the camera, and using a public telephone to call her mother. Miss X signed a ‘Contributor’s Agreement’ with Lion by which she became a contributor to the documentary. Lion produced a 40 minute film, in which Miss X was featured for 5 minutes. Miss X subsequently complained to the BBC that she did not wish to appear in the film. The BBC agreed to edit the relevant part of the film, but refused to remove all of the film of Miss X. She brought an action seeking, inter alia, an order that the BBC be restrained from screening any film of her.
Applying s.12(3) Human Rights Act 1998, as interpreted in <A
href=”https://www.5rb.com/5rb/casereports/detail.asp?case=288″ target=_parent>Cream Holdings v Banerjee:
(1) Whether Miss X was more likely than not to succeed in her action at trial;
(2) If not, whether she had a “real prospect of success”;
(3) If the test in (2) is met, whether there would be serious adverse consequences of disclosure;
(4) In any event, whether it would be appropriate for the court to exercise its discretion to grant interim relief.
Restraining the broadcast:
(1) Miss X was not more likely than not to succeed at trial.
(2) She did however have a real prospect of success.
(3) There was a significant risk of Miss X suffering serious harm if the documentary were to be broadcast.
(4) Article 8 was engaged both in relation to the images of Miss X and information about her spoken to camera. This enjoyed more than a low level of confidentiality. The degree of risk of potential harm to her was important. The information was not in the public domain. As to Article 10, the film was interesting and informative, and its broadcast should not be hindered without good reason. Miss X’s story was an illuminating part of it. At this stage, however, the balancing exercise in respect of articles 8 and 10, and the balance of convenience generally, favoured Miss X.
This is an interesting example of the application of Lord Nicholl’s interpretation of s.12(3) from <A
href=”https://www.5rb.com/5rb/casereports/detail_redirect.asp?case=288″ target=_parent>Cream Holdings v Banerjee in a case where there was significant factual dispute between the parties. The reasoning behind the finding of a significant risk of harm were given in a separate, private opinion to preserve confidentiality.