MEDIA BULLETIN
Edition 32 - Spring 2009
Our bulletins are usually divided into ‘legal’ and ‘regulatory’ sections. However our first item neatly straddles both areas.
REVOCATION OF CONSENT
Once a potential participant has signed a consent form should a broadcaster worry about its subsequent revocation? A recent Ofcom Broadcast Bulletin (23 February 2009) provides a useful summary of Ofcom’s regulatory approach to this issue.
On 18 June 2008 ITV1 broadcast an edition of The Jeremy Kyle Show that included an item entitled “I converted to Islam . . . now my mum has disowned me” which focused on the relationship between Mrs Jane Price, the complainant, and her daughter Shanzay. They both took part in a heated studio discussion which explored the difficulties in their relationship, in particular, the discussion focused on the tension that had arisen following Shanzay’s conversion to Islam and her marriage to a Muslim.
Mrs Price complained to Ofcom that she was treated unfairly in the programme, among other reasons, because she withdrew her consent to appear in the programme. Mrs Price said that she had indicated her intention to the programme makers to withdraw by tearing up the signed consent form.
Practice 7.3 of the Ofcom Broadcast Code requires that in order for potential contributors to a programme to be able to make an informed decision about whether to take part, they should be given sufficient information about the programme’s nature and purpose; their likely contribution; any changes to the programme that might affect their decision to contribute; and the contractual rights and obligations of both parties.
Although Mrs Price tore up her consent form, Ofcom considered that her consent did not rest solely on the signing of a consent or release form. Rather the type and degree of information available to Mrs Price when consenting to participate must be assessed to determine whether it was reasonable for the programme makers to have believed that the consent provided by Mrs Price was truly informed consent.
Ofcom took the view that the nature and form of The Jeremy Kyle Show was well established (that is, it raises controversial issues for discussion and then explores those issues with those participating in the programme), that Mrs Price had agreed to take part in it, that ITV had made Mrs Price aware of the nature and purpose of the programme and that she had known the areas of her relationship with her daughter that would be explored in the programme.
Mrs Price had actively and willingly participated in the programme and as the broadcast was in line with the information she was given before agreeing to take part, it was reasonable for the programme makers to have believed that the consent provided by Mrs Price was informed consent. In the absence of any significant changes to the programme or her contribution, that consent remained valid and Ofcom therefore found that the programme as broadcast did not result in unfairness to Mrs Price.
On those particular facts the Courts would not have provided any legal remedy for Mrs Price but it is worth noting that the legal position in relation to consent forms and revocation of consents is both more complex and uncertain. This is of particular significance where the contributor discloses sensitive private information.
In practice it is now unusual, and certainly unwise, for a broadcaster to rely merely on a consent given voluntarily (i.e. without any consideration, or implied from the mere fact of participation) as such consent will amount to no more than a bare licence which is capable of being withdrawn prior to publication. To avoid this potential problem consent forms are normally drafted to ensure they are contractual licences which include some small payment or other form of consideration for the contributor. Regrettably this does not, of itself, solve the problem of a participant seeking to withdraw their consent.
The Human Rights Act 1998 obliges the Courts to act compatibly with European Convention rights and therefore the Courts will need to consider the competing rights of the parties even in the context of contractual binding obligations. The most obvious example of this is the balance struck by Courts between the desirability in the public interest of upholding confidentiality agreements and the public interest in freedom of access to information.
The contractual obligations of the parties to an agreement is an important factor to be taken into account but is not determinative of itself. In LRT –v- The Mayor of London [2001] EWCA Civ 1491 the Court of Appeal confirmed a decision not to grant an injunction to restrain disclosure of information, notwithstanding an express contractual obligation of confidence, on the grounds of freedom of expression. Sedley LJ concluded: “there is nothing of genuine commercial sensitivity in the… report and nothing therefore to justify the stifling of public information and debate by the enforcement of a bare contractual obligation of silence”
There is no doubt that this balancing approach is applicable to contractual consent forms and it is not difficult to envisage circumstances where the Court would intervene to protect an individual’s right to privacy notwithstanding the contractual consent where there is little or no public interest in disclosure of highly confidential and sensitive material.
A further factor that the Courts will take into account is the behaviour of the party giving consent. Therefore the Court may conclude that it would be wrong to allow a participant to withdraw their consent where, for example, they have willingly co-operated in the making of the programme and the producer, relying on their consent, has invested substantial resources in its production.
The final warning note to sound is that standard release forms need to be carefully drafted to ensure the Courts do not strike them down as an ‘unconscionable bargain’. Too often standard release forms seek to waive all rights for a very meagre consideration. The Courts may determine such an agreement is ineffective if it is oppressive (e.g. at an undervalue), where the contributor is in a weak bargaining position (e.g. at a serious disadvantage whether through ignorance, lack of advice or otherwise so that unfair advantage could be taken) and there has been unconscionable conduct on the part of the programme maker (e.g. advantage is taken of a young or ignorant person to include a term which no sensible, well-advised person would accept). It is therefore important to ensure:
- that contributors are aware of their rights
- they are given a proper opportunity to consider the terms and obtain independent advice
- the effect of the agreement is properly explained
- the agreement is not unduly one sided to their disadvantage.
HARRASSMENT
The Protection from Harassment Act 1997 was introduced with the main purpose of protecting individuals who were suffering the unwanted attention of stalkers. However the Act was drafted in wide terms and an offence is committed where there has been a course of conduct which causes alarm or distress and the perpetrator knew or ought to have known that his conduct would have that effect.
In Ferguson –v- British Gas Trading Ltd [2009] EWCA Civ 46 the Court of Appeal took the view that the actions of British Gas in sending unwarranted bills and letters threatening to cut off Ms Ferguson’s supply and take legal proceedings could be sufficiently grave as to amount to harassment and that it was no defence that these had been generated automatically by computer. The Court recognised that the conduct had to be ‘rather serious’ and not merely annoying or aggravating as otherwise matters of everyday life would be criminalised. The Court of Appeal made clear in Thomas –v- News Group Newspapers Ltd [2001] EWCA Civ 1233 that press reports were subject to these provisions although in general it concluded that press criticism, even if robust, did not constitute unreasonable conduct and did not fall within the natural meaning of harassment. However where the facts did disclose a case of harassment, it was for the press to justify their actions as being reasonable.
It may seem that the British Gas case has no applicability to the day to day activities of programme makers. Unfortunately this is not the case and it is a useful reminder how a heavy handed pursuit of a potential interviewee or individual under investigation could easily fall foul of these provisions. It only requires conduct on more than one occasion to constitute harassment under the Act and journalists seeking an interview where a number of telephone calls are followed up by a series of e-mails, letters or even personal visits may, unless there are good and substantial reasons to justify the pursuit, face the prospect of an action under the Act. Thought must be given in each case as to whether the course of conduct is reasonable or proportionate in the context of all the circumstances e.g., the nature and content of the programme, the information it is hoped to obtain and, if relevant, the seriousness of the allegations under investigation.
An extreme example of this was revealed in Sienna Miller’s claim against Big Pictures UK Limited and News Group Newspapers. Her claims for harassment and breach of privacy were settled by a payment of £53,000 in damages by Big Pictures and £35,000 by News Group. She had been subjected to what was described as an “intolerable” campaign by pursuing photographers and as part of the settlement Big Pictures undertook not to pursue or follow Miss Miller or put her under surveillance, not to take pictures of her in her own home or garden, or in the homes or gardens of any members of her family or friends or to ‘doorstep’ her when she was entering or leaving such properties.
MORE OFCOM PRIVACY RULINGS
The Coastguards
This complaint by Mr and Mrs Yrwing related to the programme Kustbevakarna (‘The Coastguards’) broadcast on Kanal 5 on 18 February 2008.
The programme focused on the work of Swedish coastguards and the problem of ‘drink driving’ at sea. It included footage of events following a boating accident involving Mr Yrwing and his wife. The programme suggested that they were intoxicated at the time of the accident and although the Yrwings were not named or shown in the programme, footage of their boat was shown.
Mr and Mrs Yrwing complained that their privacy was unwarrantably infringed in the broadcast of the programme. Ofcom considered the usual test of whether the Yrwings had a legitimate expectation of privacy and, if so, was a breach of their privacy warranted?
In considering whether the Yrwings had a legitimate expectation of privacy in relation to the footage taken at the scene of the accident and of their boat Ofcom noted that the footage had been taken in and around the marina, a public place. However the footage was accompanied by discussion as to the cause of the accident and speculation as to whether or not the consumption of alcohol had been the cause of it. Ofcom considered that the private nature of this issue heightened any expectation of privacy in relation to the footage.
Although the Yrwings were not shown or named in the programme, Ofcom considered that they were rendered identifiable through the footage of their boat. In particular, its precise berthing position in the marina was shown and the fact the boat displayed prominently an Italian flag.
In these circumstances Ofcom took the view that the complainants did have a legitimate expectation of privacy with regard to the broadcast of the footage of the accident and of their boat and that their privacy had been infringed by its broadcast. As there was no evidence to support the suspicion that the accident had been caused by drinking alcohol Ofcom also concluded that the inclusion of this material was not warranted by the content of the programme, namely a programme that focused on alcohol related boating accidents.
The importance of this decision is the emphasis by Ofcom on context in considering infringement of privacy claims. If this had been no more than a simple examination of sailing and marina facilities in Sweden there is no doubt that any similar complaint would have been rejected. But this invasion of privacy took place in the context of a marine accident and allegations of alcohol abuse – in that context the identification of the Yrwings was a breach of their privacy.
Road Wars
This complaint by Kulwarn Cheema related to the programme Road Wars broadcast on Sky 3, on 20 August 2008 (and repeated on Sky 1 and Sky 2).
The programme featured incidents filmed during police patrols by the Thames Valley Police. It included footage which showed Mr Cheema being pulled over and arrested by the police on suspicion of theft of a stolen vehicle. The programme stated that Mr Cheema was not charged for theft but that he had been cautioned for possession of cannabis. Mr Cheema complained that his privacy was unwarrantably infringed by the filming and broadcast of the footage without his consent.
Viewers saw a police officer pulling over the vehicle that was said to have been reported as stolen. The police officer was shown asking the driver if he was the owner of the vehicle and the driver stating that it was his friend’s car. The man was not named in the broadcast but footage of him being questioned, searched and placed in the police vehicle was shown. The programme also showed footage of the driver throwing what was found to be a joint of cannabis from the car just prior to him being pulled over the police.
In considering whether or not there had been an infringement of privacy, Ofcom was first required to consider whether Mr Cheema had a legitimate expectation of privacy in relation to the circumstances in which he was filmed. Ofcom noted that Mr Cheema was filmed throwing a cannabis joint out of the window of the car he was driving, as he was being pulled over by the police. He was filmed being questioned and arrested for suspicion of theft of a motor vehicle and being searched by the police. He was filmed openly and had been stopped while driving on a public road.
Taking into account all of these factors, Ofcom concluded that Mr Cheema did not have a legitimate expectation of privacy in circumstances where he was filmed while engaged in activity for which he was arrested and subsequently cautioned. Ofcom therefore found that there was no infringement of privacy in relation to the footage filmed of his arrest by the police. For the same reasons Ofcom found that Mr Cheema’s privacy was not infringed in the programme as broadcast.
Clingfilm
This complaint by Mr D. related to the programme ‘A Girl’s Guide to 21st Century Sex’ broadcast on Fiver on 24 April 2008.
This programme was part of a series that featured advice and information from a range of doctors and sexual health practitioners on sexual behaviour and practices. It also featured the sexual experiences of individuals. In this programme, interview footage of Mr D. was included in which he talked about how he derived sexual pleasure from wrapping his body in cling film. Footage of Mr D. wrapped in cling film was shown in the programme which included the close-up images of his mouth, eye and side of his head.
Mr D. complained to Ofcom that his privacy was unwarrantably infringed in the broadcast of the programme in that he was identifiable.
Ofcom found as follows:
- Mr D. had a legitimate expectation of privacy in that the assurances given to him by the programme makers before and after filming him explicitly guaranteed his anonymity;
- Mr D.’s privacy was infringed by close up shots of his eye, mouth and the side of his head being included in the programme; and
- there was no public interest in the broadcast of the footage of Mr D. which made him identifiable, or any other jurisdiction, which outweighed his right to privacy.
The producers should obviously have opted for a tin foil fetishist.
Reporting Restrictions
It is anticipated that during April an online reporting restriction database will be launched. Although the Ministry of Justice has been unable to provide a specific date for the launch as “discussions are continuing“ they hope that during April a secure online system that allows programme makers to check Crown Court reporting restrictions should be up and running. This is a vital step forward but it is only an aid and checks on individual cases may still need to be made at the specific Courts.
Family Courts
In December 2008 Jack Straw announced that Family Courts will be opened to the media in an attempt to make them more transparent and accountable. It was anticipated and reported that this would occur in April 2009. However delays now appear to make this most unlikely.
If you would like any further information about the issues raised in this newsletter, or any other aspect of media law, please contact any member of Goodman Derrick LLP's .
This guide is for general
information and interest
only and should not be
relied upon as providing
specific legal advice.
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