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The Importance of your Lawyer when Filming and Broadcasting Factual Programmes

14 August 2023
Lessons Learned from Channel 5's Apology and the Risks for Journalists. Uncover the legal battle between Channel 5 and George Brown over the filming and broadcasting of an episode of 'Can't Pay? We'll Take it Away!' Explore the privacy rights at stake, the settlement reached, and the crucial lessons for filmmakers and broadcasters in navigating legal risks. Learn how engaging with content and clearance lawyers can safeguard against privacy breaches and ensure compliance in factual programming.

On 28 March 2023 Mr. Justice Johnson heard a public apology from Channel 5 (which also broadcasts 5HD, 5_1, 5Star, 5SELECT, Paramount Network and 5USA and owns and operates My5) issued to George Brown (a private person) for the misuse of his private information in respect of the filming and multiple broadcasts of an episode of the television show 'Can't Pay? We'll Take it Away!'.  The programme showed the Claimant and his partner in his home and in a considerable state of distress.

The Facts

The circumstances are that in 2017 the Claimant lived with his partner, Mr Sartori, in a house owned by the Claimant. Mr Sartori had not paid his solicitor's fees and the firm wished to recover the debt. At some point prior to January 2017, a Writ of Control was obtained on behalf of the solicitors' firm to seize goods to the value of the debt, for which the Claimant held no liability.

Sometime in January 2017, two High Court Enforcement Agents (“HCEAs”) attended the Claimant's home to enforce the Writ of Control against Mr Sartori. A film crew attended the Claimant's home with the HCEAs and filmed the enforcement. The Claimant and Mr Sartori refused to allow the camera crew to enter the property because neither wanted to be filmed. The Claimant was also filmed inside the house by bodycams worn by the HCEAs: it is his case that he did not know he was being filmed by the bodycams. The Claimant was filmed in a distressed state after being told his possessions would be removed unless he could provide proof of ownership. The Claimant contends that Mr Sartori was also filmed (although it was not broadcast) suffering from a serious panic attack and being attended to by paramedics during the enforcement, all of which caused the Claimant immense distress.

The video and audio recordings obtained by the film crew and the bodycams were then edited and incorporated into an episode of Can’t Pay. The episode depicting the Claimant (Series 5, Episode 10) was first broadcast by Channel 5 on 24 May 2017 and continued to be broadcast to over 11 million people in a form in which the Claimant’s face was blurred, albeit the Claimant contends that he would still be recognisable.

The broadcast of the programme caused the Claimant considerable upset and distress. The Claimant's case is that the programme wrongly revealed matters that were private to him, which took place at his home. It is the Claimant's case that the publication of the private information obtained in that way to over 11 million people amounted to a misuse of his private information.

The Broadcaster denied liability for the Claimant's case and instead the Claimant accepted an offer to resolve his claim on terms which involve the payment of substantial damages to him as well as to pay his reasonable legal costs of raising the claim, an undertaking not to broadcast the programme again, or to make it available via the internet. The Broadcaster also issued a public apology to the Claimant for the distress caused to him by the programme.

The Broadcaster nonetheless stated that at all times it believed that the programme was part of a series of real public interest, where each of the stories involved a careful balancing exercise between matters of public interest and the right to respect privacy. It was nonetheless prepared to accept, that on this occasion, in relation to the Claimant, it may well have got that balance wrong and for that reason it settled his claim and apologised to him for the distress caused to him by the broadcast of the episode in question.

Reminder to those filming factual programmes

The case is a good reminder of the importance of ensuring that the legal risks are identified in filming and broadcasting factual programmes are identified ahead of time – and that all of the legal rights of each person captured by the filming and broadcast have each been considered.

In this case, the delicate and complex legal test of assessing the privacy rights of Mr Brown set against the public interest asserted by the Broadcaster, was not sufficient.

Undertaking the legal test required to balance the competing privacy rights of one person, against a competing right of a broadcaster to exercise its right to freedom of expression in exercising a public interest function and objective if fact sensitive can be a difficult legal task.

It is crucial that any film production company and broadcaster engage with content and clearance lawyers at the earliest possible stage in production to ensure that all legal rights and issues are identified ahead of time, and that adequate legal safeguards can be put in place to assist the film makers and ensure the Broadcaster can be confident that what is being broadcast crosses the legal threshold required to pass the privacy / public interest test.  When filming live or filming factual content a number of legal challenges arise.  Whilst it is not always possible to identify all of the legal risks ahead of time, as the circumstances can be unfolding in real time, but having those legal discussions at an early stage and collaborating with the lawyers during and before filming is a crucial safeguard that cannot be underestimated.

Olivia and her media law team provide prebroadcast clearance, including legal support from the outset of a film production including advice on the various tools that film makers and broadcasters have in their armoury to ensure their content is compliant and legally robust.

If you wish to seek further advice on any of the issues discussed please contact our author Olivia O'Kane below.

Further Reading