T v The British Broadcasting Corporation (BBC)

Where publication engages Article 8, the court must conduct an intense, fact-specific balancing exercise against Article 10. It is not necessary first to decide separately whether publication is in the claimant’s best interests. A real risk or potential harm may be sufficient; the claimant need not prove that harm will occur. Privacy, autonomy and dignity may outweigh a genuine public interest in broadcasting, particularly where the person cannot give informed consent. The court should assess the value of the proposed expression in its particular context. An injunction may properly prevent identification without directing the broadcaster how to edit or present the programme.

The Official Solicitor, acting for a vulnerable young woman without capacity to give informed consent, sought an injunction preventing the BBC from identifying her in a television programme about adoption and concurrent planning. The programme included intimate footage of her final contact with her daughter and material suggesting difficulties with anger management.

The BBC accepted the relevance of the claimant’s welfare but argued that the court should first determine whether broadcasting was in her best interests. The central issue was whether identification in the programme should be restrained after balancing her Article 8 rights against the BBC’s Article 10 rights.

1. Applicable approach. The claimant’s Article 8 rights were plainly engaged. The court had to conduct a parallel analysis and apply an intense focus to the particular facts, undertaking the ultimate balancing exercise between Article 8 and Article 10. A separate preliminary determination of the claimant’s best interests was unnecessary. Her welfare was relevant within the Convention-rights balancing exercise.
2. Assessment of harm and privacy. The court was not required to predict outcomes or quantify the risks to the claimant’s welfare. A real possibility of hostile or abusive reactions was relevant, and a risk or potential harm was sufficient. More immediately, the broadcast would constitute a massive invasion of privacy and autonomy and would undermine the claimant’s dignity. The making of the programme could not be undone, but broadcasting it would amplify and perpetuate the infringement.
3. Balancing exercise. The subject of adoption and child care involved a genuine public interest, and the programme was intended to provide serious and informative coverage. That interest did not require identification of the claimant or her daughter. The value of the BBC’s expression in the particular circumstances was not proportionate to exposing the claimant’s intimate feelings and relationship with her daughter, especially when she could not give meaningful or informed consent.
4. Form of relief. The injunction prevented the claimant from being identified in the programme. It did not require the BBC to use any particular technique, such as pixilation, an actor’s voice or deletion of names. The BBC was left to decide whether and in what form the programme should be broadcast.