Law Report: BBC camera crew invaded subject's privacy: Regina v Broadcasting Complaints Commission, ex parte British Broadcasting Corporation - Queen's Bench Division (Mr Justice Macpherson), 9 October 1992

The conduct of investigative journalists engaged in obtaining material for a radio or television programme could constitute 'unwarranted infringement of privacy' contrary to section 54(1)(c) of the Broadcasting Act 1981, even if none of the material obtained on the occasion complained about was used in the broadcast.

Mr Justice Macpherson refused an application by the BBC for judicial review of a finding by the Broadcasting Complaints Commission on 21 November 1990, upholding one of 40 complaints made by David Lloyd about an edition of the BBC's Watchdog programme. An application by Mr Lloyd, alleging procedural flaws and unfairness in the commission's hearing, was also refused.

Alan Wilkie QC (BBC solicitors) for the BBC; David Pannick QC (Gregory Rowcliffe & Milner) for the commission; George Warr and Jonathan Manning (Peter Carter- Ruck & Partners) for Mr Lloyd.

MR JUSTICE MACPHERSON said Mr Lloyd ran a dating agency which rejoiced in the name Apollo People Introduction Bureau. Some customers were dissatisfied about the financial and introductory aspects of the business. The BBC decided to devote part of one of its Watchdog programmes to the topic. The programme was broadcast on 6 November 1989.

Programmes of this kind could do good for consumers, and they could do harm to those whose business and activities were investigated. There was a measure of statutory regulation under the 1981 Act, as well as the protection afforded by the general law, such as the laws of libel and trespass. But there was as yet no remedy to protect the citizen who believed his privacy had been invaded. In this context he was limited to the publication of findings under Part III of the 1981 Act.

Section 54(1) set out the functions of the commission, including: 'to consider and adjudicate upon complaints of (a) unjust or unfair treatment in sound or television programmes actually broadcast . . . or (c) unwarranted infringement of privacy in, or in connection with the obtaining of material included in, sound or television programmes actually so broadcast.'

Section 54(3) defined 'the relevant programme' in relation to a complaint as meaning 'the programme in which the alleged unjust or unfair treatment occurred or in which, or in connection with the obtaining of material included in which, the alleged unwarranted infringement of privacy occurred'; while 'unjust or unfair treatment' included 'treatment which is unjust or unfair because of the way in which material included in a programme has been selected or arranged'.

Most of Mr Lloyd's 40 complaints to the commission were about unjust or unfair treatment in the programme itself. But two complaints were dealt with as infringement of privacy points. They concerned (1) the activities of the BBC camera and investigative team, assisted by two dissatisfied customers, at the home of Mr Lloyd and his wife on 10 October 1989; and (2) the taking of an unauthorised photograph of Mr Lloyd as he sat in his car on 13 October 1989.

What happened on 10 October was partly recorded on video by Mr or Mrs Lloyd or somebody at their house, and took place against a background of correspondence in which Mr Lloyd had earlier indicated to the BBC that no interview with himself was necessary or available.

It must be stressed that none of the material from the visit on 10 October was actually broadcast on television in picture form, though a verbal reference was made to Mr Lloyd's refusal to be interviewed.

The commission made separate adjudications in connection with the two categories of complaint. All the complaints of unjust or unfair treatment under section 54(1)(a) were dismissed, so in a sense the programme itself was vindicated. Of the two infringement of privacy complaints under section 54(1)(c), the first was upheld but the second was dismissed.

The BBC's case was that since none of the material shot or obtained at the Lloyds' home on 10 October was broadcast, the commission had no jurisdiction to consider the section 54(1)(c) complaint. Its decision to uphold it was ultra vires, void and of no effect.

The commission's case, supported by Mr Lloyd, was that the statute should be construed both literally and purposively in the commission's favour. The alleged unwarranted infringement of privacy took place 'in connection with the obtaining of material included in' the programme. The words 'in connection with' were wide and the attempted interview and confrontation should be held to have been done in connection with the general obtaining of material which was, in fact, included in the programme.

His Lordship accepted the commission's argument without hesitation. It was verging on the absurd that if a single 'flash' of the visit to the Lloyds' home had been included in the programme, the commission would have jurisdiction under section 54(1)(c), but not otherwise.

In his Lordship's judgment, provided there was some nexus or connection between the visit and the material actually broadcast, then what took place must be within the words 'in connection with the obtaining of material included in' the programme.

In any event, the use in the programme of the words 'Mr Lloyd refused to be interviewed' brought section 54(1)(c) into play even on the narrow construction. Those words referred not just to the correspondence but also to the visit, when Mrs Lloyd, on Mr Lloyd's behalf, tried to put up the shutters against the team which plainly wished to interview and confront Mr Lloyd, who was inside the house.

Paul Magrath, Barrister