Leeds City Council & Ors v Channel Four Television Corp

At an interim hearing concerning covert filming of schoolchildren, the court had to balance the children’s Article 8 rights against the broadcaster’s Article 10 rights and the public interest in investigative journalism. A child may have an arguable claim in confidence or privacy where covert filming occurs in a school setting, even though the child is not otherwise subject to the Family Division’s protective jurisdiction. Under section 12(3) of the Human Rights Act 1998, the applicant had to show that success at trial was likely, ordinarily meaning more likely than not. The public interest in broadcasting serious matters may outweigh substantial privacy interests where covert filming was necessary and complied with the applicable broadcasting code. The injunction was refused.

Two children, represented by their parents as litigation friends, sought to restrain Channel Four from broadcasting images obtained by covert filming in their school. The claims relied on breach of confidence, privacy rights under Article 8, and, if necessary, the inherent jurisdiction of the Family Division. The broadcaster relied on Article 10, including rights to receive and impart information, and contended that the claims disclosed no cause of action. The application was heard urgently before the proposed broadcast. The central issues were whether an arguable cause of action existed, what threshold applied under section 12(3) of the Human Rights Act 1998, and how the competing Convention rights and public interests should be balanced.

1. Cause of action and jurisdiction. The court was not persuaded that the claims failed in limine. The inherent jurisdiction of the Family Division survived as a source of jurisdiction in cases where it would have existed before In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, although its exercise had to comply with the principles stated in that decision. The court was also not persuaded that the inherent jurisdiction was confined to cases in which the court was already exercising a care or protective role.
2. Confidence and privacy. The relationship between a school and its pupils was capable in principle of giving rise to enforceable duties of confidentiality. A pupil could have a reasonable expectation of privacy in the ordinary school day, including privacy from covert media filming, even where the pupil’s identity was obscured from the general public but remained ascertainable by friends, relatives or local people. The issue was arguable and could not be rejected at the threshold.
3. Balancing Convention rights. The children’s Article 8 interests carried considerable weight. They had been filmed without consent in a setting reasonably expected to be private, and possible embarrassment or humiliation remained relevant despite facial obscuration. Against that, the broadcaster’s Article 10 rights and the Article 10 interests of parents, public authorities and the public were powerful. The film concerned alleged serious failures in the state school system and matters of substantial public interest. Its public-interest purpose could not adequately be achieved through private disclosure alone.
4. Interim threshold and broadcasting code. Applying section 12(3) of the Human Rights Act 1998, the court held that the ordinary meaning of “likely” applied: the claimants had to show that success at trial was more likely than not. The evidence did not justify the lower threshold contemplated in exceptional cases involving serious personal injury. The court also concluded that the covert filming and filming without parental consent were warranted under the relevant OFCOM Broadcasting Code provisions. The claimants had not shown that a breach of the Code was likely to be established at trial.
5. Disposition. The competing interests came down fairly heavily in favour of Channel Four. Removing images of the two claimants would be inconsistent with the general basis of the claim and risked undermining the integrity of the film. Injunctive relief was refused in all forms sought.