BKM Ltd v British Broadcasting Corporation

An interim injunction restraining publication should be granted only where the claimant is likely to establish at trial that publication ought not to be allowed. The court must balance privacy and freedom of expression rights through an intense, fact-sensitive proportionality assessment, giving particular weight to freedom of expression under section 12 of the Human Rights Act 1998.

Pixilation and other measures may reduce, but do not necessarily remove, an interference with privacy. The absence of consent is important but not automatically decisive. Surreptitious material may be broadcast where the public interest is sufficiently strong and the claimant has not shown that publication would probably be restrained at trial. Courts should be cautious about assessing editorial necessity on an interim application.

BKM operated a Welsh nursing home whose residents included elderly and disabled people. The BBC intended to broadcast a programme about alleged shortcomings in the home and the effectiveness of its regulation, using material obtained by an undercover reporter through secret filming.

BKM sought an interim injunction to protect the residents’ privacy rights under Article 8 of the Convention. The BBC relied on Article 10, section 12 of the Human Rights Act 1998, the public interest in care standards, and assurances that residents would be made unidentifiable. The central issues were whether publication was likely to be restrained at trial, whether the proposed safeguards sufficiently reduced the privacy interference, and whether secret filming and its broadcast were justified.

1. The application for an interim injunction was refused. Under section 12(3) of the Human Rights Act 1998, relief restraining publication before trial could be granted only if BKM was likely to establish that publication should not be allowed. This meant that publication had to be more probably than not restrained at trial.

2. The residents had a reasonable expectation of privacy in the nursing home. Secret filming and broadcasting could infringe Article 8 even where the residents were not identifiable. An image of a resident engaged in an intimate activity could remain a serious interference after extensive pixilation. Conversely, a heavily obscured image of a resident merely sitting in a lounge might involve little invasion of privacy. The extent of the interference depended on the circumstances.

3. Article 8 and Article 10 required a balancing exercise involving an intense focus on the specific rights claimed, the justification for restricting each right, and proportionality. Consent would be highly important and, if present, might be determinative, but its absence did not determine the outcome.

4. The general standards of care in nursing homes and the effectiveness of regulation were matters of public interest. On the evidence available, it was strongly arguable that the alleged failings might reveal a wider management problem. The court rejected the argument that the BBC could necessarily make its point equally effectively from inspection reports or the reporter’s own account. Assessing editorial necessity was generally inappropriate for a judge on an interim application.

5. The BBC’s proposed safeguards were relevant to the balancing exercise, although they did not automatically eliminate the residents’ privacy rights. The greater weight presently lay on the public-interest side, reinforced by the statutory protection for freedom of expression. BKM had not shown that publication was likely to be restrained at trial.

6. The court declined to draw an adverse inference from the BBC’s failure to disclose the unfinished programme. It also noted that the proposed injunction was excessively wide and would not, in any event, have been granted in those terms. The court did not decide that any particular broadcast would be lawful or justified; that would depend on the final content.