Privacy, Data Protection and Retention
Google Spain SL v. Agencia Española de Protección de Datos
Closed Mixed Outcome
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The Court of Appeal of England and Wales held that broadcasting the eviction of Shakir Ali and Shahida Aslam (the Claimants) on television was a violation of their right to privacy under Article 8 of the European Convention on Human Rights (ECHR). The broadcasting of the eviction was included in a Channel 5 “observational documentary” series on the rising problem of debt and the real-life consequences of the UK enforcement process. The High Court of Justice found that while Channel 5’s programme had contributed to a debate of public interest, the inclusion of the Claimants’ private information exceeded what was justifiable for that purpose, and the Court awarded £10,000 in damages for the disclosure of “fairly sensitive” private information of a “voyeuristic quality”. On appeal, the Court was satisfied that the High Court had attached sufficient weight to the public interest of the broadcast in balancing the countervailing rights to privacy and freedom of expression at first instance. The Court of Appeal affirmed that the Claimants had a reasonable expectation of privacy in respect to the information included in the programme and concluded that the restriction of the right to freedom of expression was justified and proportionate in respect of the Claimants’ right to respect for their family life and home.
On 1 December 2012, Mr Rashid Ahmed (Landlord) rented his house to the Claimants, Shakir Ali and Shahida Aslam. The Claimants are husband and wife. Mr Ali was “self-employed” but also held the posts of Media Secretary of the Pakistan Muslim League (Nawaz) (“PML(N)”) in the UK from 2013 to 2015 and the Chairman of Karwan-e-Fikr, a political think tank and discussion group in the UK.
During this time, the Defendant Channel 5 had commissioned a television series produced by veteran BBC journalist Mr. Brinkworth called “Can’t pay? We will take it away.” The show was an “observational documentary” which aimed to reveal the problem of growing indebtedness in the community and “show how the process which courts provided for the enforcement of debt on the reclaiming of property from debtors and tentants actually operated within ordinary people’s lives.” The episodes documented the real-life consequences from the various viewpoints of those involved. The in-house lawyer for the production company reviewed all the rough-cuts to ensure the proposed episodes were “balanced and fair and complied with all legal and regulatory requirements.” [para. 65]
In January 2014, the Claimants stopped paying the full amount of the rent due to the landlord. On 13 June 2014, the landlord served notices under section 21(4)(a) of the Housing Act 1988 to the Claimants requiring possession of the property. In September of 2014, the landlord commenced proceedings for possession against the Claimants under accelerated procedure. The District Judge found for Mr Ahmed and ordered the Claimants to give possession on or before 30 March 2015.
On 1 April 2015, a writ of possession was issued by the High Court Queen’s Bench Division, directing a High Court Enforcement Officer, Ms Sandbrook, to enter the Property and return ownership to Rashid Ahmed. The Claimants were not informed of the intention to evict the following day, 2 April 2015. Ms Sandbrook, assisted by two enforcement officers, Mr Bohill and Mr Short, attended the Claimants’ home the next day to evict the Claimants. Concurrently, Channel 5 became aware of this writ and appeared at the venue as well the next day to shoot enforcement of the eviction proceedings against the claimants for their show “Can’t Pay? We will take it away.”
The eviction was filmed by the television production company Brinkworth Films Ltd. Enforcement officers Bohill and Short were also wearing go-pro cameras for their own protection, but that footage was available to Channel 5. Edited footage of the evidence was broadcast by the Defendant, Channel 5. During the eviction, Mr Ali and his wife requested not to be filmed, which was denied.
The son of the landlord, Omar Ahmed, also filmed two short videos of the claimant Mr. Ali on his mobile phone, calling him a “Liar”, who “lies on the holy Quran”, and subsequently posted the videos on Facebook.
The broadcast footage from the eviction was the subject of this claim. From 4 August 2015 until 20 December 2016 the Programme was broadcast 36 times on four television stations owned by Channel 5. The Programme occupied an hour slot and without advertisement breaks, it ran for about 45 minutes. The Claimants were identified by their names and were clearly shown in the programme. There was no reference to thed first claimant Mr. Ali’s political activities and affiliations nor was there any mention of the claimants’ requests not to be filmed. The two police officers were shown, but not identified by name.
It was viewed 9,420,000 times via these media. From 4 August 2015 until 18 April 2017 it was also made available on-demand via a website owned by Channel 5 called www.my5.tv. During this time it was viewed online 230,393 times. In total, the Programme had been watched 9,650,393 times.
In February 2018, the High Court of Justice of England and Wales ruled that the Claimants “had a reasonable expectation of privacy” [para. 169] at first instance. Arnold J held that, while the Defendant’s programme had contributed to a debate of public interest, the inclusion of the Claimants’ private information exceeded what was justifiable for that purpose. The Claimants received £10,000 in damages for the disclosure of “fairly sensitive” private information of a “voyeuristic quality”. Arnold J concluded that the award would have been higher had there not been two videos of the eviction already posted on social media.
The Claimants appealed their awards of damages and the Defendant cross-appealed the finding of liability.
Lord Justice Irwin delivered the judgment of the Court of Appeal (Civil Division).
The main issue before the Court was whether the High Court at first instance had erred in ruling in favour of the right to privacy of the Claimants, Shakir Ali and Shahida Aslam, over the right to freedom of expression of the Defendants, Channel 5 Broadcast Ltd.
The Claimants’ complaint concerned the information conveyed in the broadcast that related to their family, their home and the details of the eviction. They claimed that the broadcast amounted to a misuse of private information and sought higher damages than had been awarded at first instance. Channel 5 cross-appealed the finding of liability at first instance.
Cross-Appeal on Liability
The Court held that cross-appeal on liability for Channel 5 should fail.
Channel 5 argued that, in carrying out the balancing exercise, the judge went beyond what was justified and made an error of law [para. 68]. At the core of this argument is the proposition that by concluding that the focus of the Programme was not a matter of public interest but the “drama of the conflict” between Omar Ahmed and the Claimants, the judge substituted “his own views on editorial matters, intruding on the proper area for the exercise of editorial discretion.” [para. 68]
The Claimants counter-argued that the existence of some public interest does not justify any privacy interference. Secondly, editorial discretion does not warrant an invasion of privacy. [para. 76]
The Court of Appeal, referencing authority from Campbell v MGN and the approach taken by Mann J in Richards v BBC, set out that editorial discretion which cannot rationally be justified by the public interest in publication cannot be rendered lawful. The Court accepted the lower court finding that Mr Bohill encouraged Omar Ahmed to taunt the Claimants in order to make make “good television,” that there was no true consent by the Claimants to participate in the recording and that the first Claimant Mr. Ali was not a public figure on account of his political role. [para. 86] The Court also conceded that the judge’s interpretation of the public interest at first instance was too narrow. By emphasising the specific public interest in the nature of eviction, Arnold J had failed to consider other matters of public interest raised by the programme and the series as a whole in its balancing exercise. Furthermore, the Court stated that it “could also be argued” that Arnold J made inadequate allowance for the role of editorial discretion.
However, the Court ultimately rejected the cross-appeal on liability for three principal reasons.
The Appeal on Damages
The Court of Appeal held that the appeal in relation to the quantum of damages awarded should fail.
The Claimants proposed three grounds to argue that the damage awards were too low.
With regard to the first ground, the Channel 5 submitted that “there can be no linear or arithmetical relationship between the number of viewers and quantum.” [para. 11] The Court of Appeal rejected this reasoning. Arnold J was in the best position to make the relevant impact assessment and was required to allow for the impact on the Claimants already caused by the social media posts. Furthermore, while the distress suffered by Mrs Aslam exceeded that of her husband, the impact of the content was directed more toward her husband than on Mrs Aslam. While the Court accepted that other judges may have decided upon a higher quantum of damages, the appellate court should be “slow to interfere with an assessment of damage in such a case as this, where the measure of damage is necessarily general and cannot be calculated mathematically.” [para. 118]
The Court also rejected the second ground. Lord Justice Irwin held that the distress attributable to the broadcast was reduced as many people within the Claimants’community were already aware of the events from the social media video posts. Arnold J was required to account for this under Section 12(4)(a)(i) of the Human Rights Act 1998. Had the judge not taken these posts into account, the Court suggests that the Defendant would have had a legitimate complaint.
Finally, the Court rejected Ground 3, concluding that the Judge had sufficiently considered the potential impact on the Claimants’ children at first instance. The judge had engaged with the defence submitted by Channel 5 on this point, finding that the children would already have experienced an adverse effect because of the videos posted by the Ahmeds. [para. 109]
On both the appeal and cross-appeal in this case, the Court of Appeal placed a significant weight on the principle that appellate courts should be slow to interfere with the trial judge’s interpretation of the balancing exercise, should the judge have taken into account all relevant matters, which Arnold J had done. The Court’s ruling should not be interpreted as the death knell for “fly on the wall” documentaries, as was the case in PJS v News Group Newspapers Ltd (Rev 1)  UKSC 26 for the “kiss and tell” tabloid stories (here).
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision has a mixed outcome. On one hand, the Appeal Court, in affirming the High Court ruling, contracted freedom of the press in order to protect the right to privacy. On the other hand, it carved out an important exception that if the expression [T.V. Programme here] contributes to a debate of general importance to the society, in such cases, the fundamental distinction needs to be made between reporting facts capable of contributing to a debate of public interest in a democratic society and reporting the details of the private lives of individuals. Freedom of expression can certainly be construed to include the right to broadcast the former facts but not the latter.
The court, in this case, opined that neither article 8 (Right to Privacy) nor article 10 (Freedom of Expression) has as such precedence over the other. But where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. The justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. The court observed that the European Court of Human Rights has frequently stressed that freedom of expression constitutes one of the essential foundations of a democratic society. Accordingly, the need for any restrictions on freedom of expression must be convincingly established.
Overall, the Court accepted that the Programme contributed to a debate of general interest, but the inclusion of the Claimants’ private information in the Programme went beyond what was justified for that purpose. The Programme made no reference to the first claimant’s political activities. It was concerned with the Claimants’ position as private individuals. The focus of the Programme while on matters of public interest, focused too heavily upon the drama of the conflict between the landlord and the Claimants.
However, the more surprising ruling is the logic behind the quantification of damages. Both the High Court and Court of Appeal accepted that the case involved “fairly sensitive” information, was broadcast to a very wide audience and the Claimants suffered significant distress. This would indicate an award for general damages exceeding the £10,000 granted to each Claimant. Ultimately, as the Court did not find a “wrong principle of law”, Lord Justice Irwin determined that it could not intervene.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
Since this case pertains to the violation of Article 8 of the European Human Rights Convention, it serves as an influential precedent for Courts of other members of the Council of Europe.
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