The brothers, said to be worth around pounds 600m, took the action after a BBC2 television reporter landed on the Channel island of Brecqhou, on which they had spent millions buying and building a Gothic castle there. If successful, their action could have had a devastating effect on television documentary-making.
They lodged an immediate protest with the Broadcasting Complaints Commission (BCC) after the reporter's incursion but were told nothing could be done until after any programme was broadcast.
The 61-year-old brothers applied to the High Court for a judicial review of the BCC's interpretation of the part of the Broadcasting Act that governs its powers.
But Mr Justice Sedley ruled that the law "at present places no general constraints upon invasions of privacy as such".
He said that the Act "unambiguously limits the power of the BCC to adjudication upon complaints of infringement of privacy against the BBC arising out of programmes which have been broadcast".
Under the statute governing the BCC's powers, and generally in English law, "the individual is without an effective remedy before a national authority if the right to respect for his or her private and family life is violated". The judge said the argument over the right to privacy in English law and its lack of conformity with the European Convention on Human Rights "will doubtless not end here". But he refused leave to appeal because he said the intention of the law was clear.
The issue arose over investigations by BBC journalists for the media programme, The Spin, which was eventually broadcast in October 1995 and is now the subject of a complaint to the BCC by the Barclay twins. They had refused permission for a personal interview and for entry to the island, but the reporter, John Sweeney, went there by dinghy and wandered around before being shipped back to Sark.
Mark Shaw, for the BCC, had told the judge: "No doubt there was an invasion. But Parliament has taken the view that a line has to be drawn and that line is after there has been a broadcast. If Parliament had intended the law to apply before a broadcast it would have said so." The Barclays' application, if allowed, would amount to a "gagging order", he said.Reuse content