Ali & Anor v Channel 5 Broadcasting Ltd

Editorial discretion cannot make an interference with privacy lawful unless publication can be justified logically and rationally by the public interest served. Where such a rational justification exists, the court must give full weight to editorial knowledge and discretion and should be slow to interfere.

An appellate court should not disturb a first-instance balance between privacy and freedom of expression unless the judge erred in principle or reached a conclusion outside the range reasonably open on the evidence. The same restraint applies to general damages for misuse of private information. Publication scale is relevant, but damages cannot be calculated by a linear or arithmetical relationship with audience size.

A television documentary showed the claimants’ eviction from their rented home. It included footage recorded inside the home and in the street while they were shocked and distressed. The claimants had repeatedly objected to filming, and the first claimant’s later interview was given so that his account might be included rather than as true consent.

Arnold J held that broadcasting the footage misused the claimants’ private information and awarded each claimant £10,000: [2018] EWHC 298 (Ch). The broadcaster cross-appealed against liability, arguing that the judge had undervalued the programme’s public interest and improperly restricted editorial discretion. The claimants appealed against the amount of damages.

The central issues were whether the judge’s balance between rights under articles 8 and 10 was legally permissible and whether the damages awards were too low.

1. Both the appeal and cross-appeal were dismissed. The trial judge’s finding of liability and the awards of £10,000 to each claimant were upheld.
2. The principles stated in Campbell v MGN Ltd required significant latitude for editorial judgment. Editorial discretion cannot make an interference with privacy lawful where publication cannot logically or rationally be justified by the public interest served. Where a rational public-interest justification exists, however, the court must give full weight to editorial knowledge and discretion and should be slow to interfere.
3. The programme addressed matters of real public interest extending beyond court enforcement procedure. These included debt, insufficient benefits, eviction and the consequences for families. Documentary treatment of those subjects might be impossible without some interference with the privacy of affected persons. The programme was substantially accurate and made in good faith.
4. Nevertheless, the trial judge had understood the relevant principles and the full range of public-interest considerations. His conclusion represented an overall assessment of the programme, rather than an impermissibly atomised requirement that every item of private information independently serve the public interest. Although another judge could reasonably have struck the balance differently, Arnold J’s conclusion was within the permissible range. The appellate court therefore could not interfere.
5. The claimants had not truly consented. Their objections, lack of information about the programme and the pressure to present their side meant that the first claimant’s interview was participation under protest. It could not retrospectively authorise earlier filming.
6. The judge was entitled, and required by section 12(4)(a)(i) of the Human Rights Act 1998, to consider earlier social-media postings when identifying the distress attributable to the programme. He also considered the effect on the claimants’ children.
7. Damages for privacy infringement may compensate for distress, loss of privacy or autonomy, and injury to dignity or standing. A court may make a global award where that fairly compensates the wrong and avoids double counting. Audience size is relevant, but bears no linear or mathematical relationship to quantum. The awards were not so low as to justify appellate intervention.

1. Court of Appeal (Civil Division): The claimants’ appeal against damages and the defendant’s cross-appeal against liability were dismissed: [2019] EWCA Civ 677.
2. High Court, Chancery Division: Arnold J held that the programme misused the claimants’ private information and awarded each claimant £10,000: [2018] EWHC 298 (Ch).