R v Broadcasting Standards Commission, Ex p British Broadcasting Corpn (British Broadcasting Corpn, Ex p)

Under the statutory broadcasting-standards regime, a company may complain that its own privacy was unwarrantably infringed. This conclusion reflects the language and regulatory purpose of the Broadcasting Act 1996; it does not establish a general corporate right to privacy.

Secret filming on business premises may constitute an infringement even where the public has access and the recorded activity is not inherently private. Secrecy deprives the company of an opportunity to withhold consent. Whether an infringement is unwarranted depends upon its degree and the strength of the broadcaster’s justification.

The Commission has a wide evaluative latitude when applying these open-textured standards. A reviewing court may intervene only where the Commission’s interpretation falls outside the range which the statutory language can reasonably bear.

The Broadcasting Standards Commission upheld a complaint by DSG Retail Ltd, trading as Dixons, concerning the BBC’s secret filming of staff and transactions in its stores for possible use in a consumer programme. The film disclosed no misselling and was not broadcast. The Commission nevertheless found that the filming infringed the company’s privacy and was unwarranted because the BBC lacked sufficient evidence to justify using hidden cameras.

On judicial review, Forbes J quashed the adjudication. He held that a corporation could not complain of infringement of its own privacy and that filming events in publicly accessible premises could not infringe privacy where the events lacked a private element. The Commission appealed. The central issues were whether a company could complain of infringement of its privacy under the Broadcasting Act 1996 and whether clandestine filming in publicly accessible business premises could fall within the Commission’s jurisdiction.

1. Appeal allowed unanimously. Lord Woolf MR delivered the leading judgment. Hale LJ agreed with his reasons, while adding observations about their statutory context. Lord Mustill concurred on the narrower basis supplied by the language and purpose of the particular legislation. The Commission’s adjudication was restored.

2. A company may complain of an unwarranted infringement of its own privacy under sections 110 and 111 of the Broadcasting Act 1996. Section 111(1) expressly permits an incorporated body to make a fairness complaint, while section 110(4) includes privacy complaints within that category. Other provisions distinguish an individual from the wider concept of a person. The Act’s purpose also supports protection of corporate activities, premises, meetings and correspondence from unjustified intrusion.

3. This conclusion concerns broadcasting standards, not the creation or enforcement of general legal or human rights. The Commission’s function is to formulate and uphold standards of acceptable media conduct through adjudication and publicity. The statutory conception of privacy could therefore be wider than the protection afforded by article 8 of the European Convention on Human Rights. Convention jurisprudence should not be used to reduce protection which domestic legislation otherwise provides.

4. The Commission could properly regard clandestine filming in a store as an infringement of the company’s privacy, notwithstanding public access to the premises and the absence of inherently private conduct. Secrecy was a material additional ingredient. It deprived the company of the opportunity to object to filming on its property and to the potential use of the recording in the mass media. The company’s invitation to the public did not extend to secret filming.

5. The Commission’s two-stage practice—first determining infringement and then deciding whether it was unwarranted—was legitimate, but the stages were closely connected. A limited infringement requires only modest justification, whereas a serious intrusion requires stronger justification. The requirement that an infringement be unwarranted must also be applied so as to avoid an inappropriate chilling effect upon freedom of expression under article 10.

6. The meaning of privacy in this regime is an open-textured evaluative question entrusted primarily to the specialist Commission. Judicial review is available where an interpretation lies beyond the range which the statutory words can bear. Within the grey area of reasonable judgment, however, the Commission determines its own remit. Its decision concerning the BBC’s filming was well within that latitude, and the BBC no longer challenged the finding that the infringement was unwarranted.

1. Court of Appeal: Allowed the Commission’s appeal unanimously and restored its adjudication. Leave to appeal to the House of Lords was refused.
2. High Court, Queen’s Bench Division: Forbes J granted the BBC’s application for judicial review on 9 July 1999 and quashed the Commission’s adjudication. He rejected the separate allegation of Wednesbury unreasonableness.
3. Broadcasting Standards Commission: On 5 May 1998, upheld Dixons’ complaint that the BBC’s secret filming was an unwarranted infringement of the company’s privacy.