By Amber Melville-Brown, David Price Solicitors & Advocates, London


Auntie doesn't necessarily know best

T v the British Broadcasting Corporation [2007] EWHC 1683 (QB)

The BBC has been ordered not to identify a young mother in one of five programmes about abortion, despite the fact that she had given her consent to the filming and broadcast. Was this a huge invasion of her and the BBC's right to free speech? No, by contrast her identification in the programme would have been a 'massive intrusion' of her privacy.



The proposed programme dealt with the concept of 'concurrent planning', where a child is removed from its natural parents to be placed in foster care while both adoption and return to the parents are considered. This happened with T's two-year-old daughter whose foster parents were ultimately allowed to adopt her. The programme included what Mr Justice Eady described as 'a number of intimate moments, including the last contact session between mother and daughter, which was tearful and distressing for T'.



T, a vulnerable adult, was 18 in April 2007, and unchallenged evidence before the court showed that she had an IQ of 63, suffered from a mental disorder (within the meaning of the Mental Health Act 1983) and a mental impairment (within the meaning of the Metal Capacity Act 2005, not yet in force). According to the Official Solicitor who sought the injunction on her behalf, she did not have the capacity to give informed consent.



Eady J accepted that 'there is a genuine public interest in the subject of adoption and child care' and that the series was 'intended to present a serious and informative coverage of that subject'. But he had to consider 'whether responsible treatment of the topic... requires such a fundamental invasion of this young woman's article 8 rights'.



The test to be undertaken in circumstances where article 8 and article 10 rights are at odds has been defined and refined since the implementation of the Human Rights Act 1998. This has been done over a series of cases beginning with Campbell v MGN [2004] 2 AC, the family court case of Re S (A minor) [2005] 1 AC and the European Court of Human Rights case of Von Hannover v Germany (2006) 43 EHRR7. This recent urgent injunction application is a clear and succinct example of the way that those tests play out in practice.



The court must first consider whether the claimant's article 8 rights are engaged. Eady J had little trouble in finding that to be so: 'There are few things more intimate, or engaging of article 8 rights, than portraying a mother's last meeting with a much-loved daughter, whom she will not be permitted ever to see again - at least until she grows up.'



Next, the court carries out a parallel analysis of the rights at play, applying an 'intense focus' to the particular facts of the case, and carrying out an 'ultimate balancing exercise' between the article 8 and 10 rights.



Eady J rejected the submission - based on a decision in 2004 in the family court - that the court had to consider as a preliminary issue whether the broadcast was in the best interests of T and, only if it was not, then move on to the balancing exercise. He found no such early hurdle to the issues being properly considered together in the balancing exercise. Neither was he swayed by a proposal that he should predict the outcome that the broadcast might have on T's welfare. No actual harm need be predicted where article 8 was engaged; a risk or potential harm was sufficient. 'It is not a matter of her, or the Official Solicitor, having to prove that she would be greeted with a hostile and abusive reaction by viewers who recognise her... That is, however, in my judgment a real possibility.'



In conducting the balancing exercise, Justice Eady weighed all the evidence before him, evidence which included on the one hand that the broadcast would damage T by showing her being admonished for being rough with her child; and on the other that it might be good for her by showing local viewers that she denied being abusive. His ultimate conclusion was that he could see 'no advantage for T which would outweigh the violation of her privacy which the making of the programme and its broadcast would clearly represent'. Moreover, the broadcast would constitute 'a massive invasion of T's privacy and autonomy, and would undermine her dignity as a human being'. In conclusion, 'the value of the broadcaster's expression in terms of article 10 simply cannot be proportionate to the exposure of T's raw feelings and of her treatment of, or relationship with, her small daughter'.



The terms of the injunction did not seek to prevent the broadcast of the programme - that would have been a disproportionate remedy - but simply to prevent the identification of T; 'the court's sole interest is to prevent the further infringement of T's article 8 rights by her being identified in the context of this programme'.



While it is not for the court to overstep its reach and act as censor, deciding if and whether the programme should be broadcast, for practical purposes it may be that the BBC is unable to broadcast the programme in a way that does not identify T. However, that element of its freedom of expression at least remains intact. Whether it will chose to exercise it, and will be able to do so, is another matter entirely.



Blue Peter fined and the Ofcom Ayre Inquiry

In an unprecedented move, Ofcom has fined the BBC over one of its much-loved and long-running children's television programmes. The £50,000 fine was ordered after Ofcom found that 'Blue Peter' had breached the Ofcom code in a competition raising money for Unicef in November 2006.



Callers paid 10p for a call, including a donation to charity, to identify the celebrity owner of a pair of shoes. When 'technical difficulties' meant that producers were unable to retrieve the callers' details before broadcast, a visitor to the studio was asked to step in as the purported 'live' winner. The offending programme was repeated later that day on CBBC. It came to light when another visitor to the studio wrote to the BBC's 'Have your Say' messageboard. The BBC apologised unreservedly for the serious error of judgment and the competition was re-run with a winner from the original callers.



Premium phone-line regulator Icstis is investigating this and all manner of similar incidents by various broadcasters, while Ofcom's investigation has found breaches of the code in relation to competitions being run 'fairly' with clear and identified rules and the 'physical and emotional welfare and dignity of people under 18'. Any such breach - let alone misleading children - 'go to the heart of the relationship of trust between the broadcaster and its audience'. The deception here also involved the participation of a child, which 'demonstrated a casual lack of regard for the welfare of that child'.



The BBC contended that there was no 'ill-motivated desire to deceive an audience or to conduct an unfair competition' and that its actions had stemmed from a 'misjudgement' by a junior researcher in the face of a technical difficulty during the high-pressure environment of live broadcasting. No harm had actually resulted and the BBC had not profited from the matter. But while the committee noted the BBC's 'extensive remedial action' - including the apology, the internal investigation, prompt notification to Ofcom and Icstis - and the fact that any fine would come out of the licence fee, this was a serious situation which required a serious penalty.



The BBC is not the only broadcaster seemingly to have fallen short. While not predetermining the outcome of Ofcom's and Icstis' investigations, Richard Ayre, a non-executive member of the Ofcom content board, has published the findings of his inquiry into whether there were any systematic reasons behind the large number of apparent failures of compliance in the use of premium rate services (PRS) on TV.



His summary findings are:

l Compliance failures were systemic;

l Revenue generation was a major driver in the growth of PRS;

l Some broadcasters appeared to be in denial about their responsibilities to ensure programmes delivered on the transactions they offered to viewers;

l There was an apparent lack of transparency through the supply chain - between telecoms operators, producers and broadcasters - resulting in a lack of clarity about responsibilities; and

l Broadcasters are concerned that there is a lack of clarity between Ofcom and Icstis.



His summary recommendations included amending television broadcasters' licences to include requirements for consumer protection in relation to PRS and require independent third-party auditing of PRS activity. He also said there should be further guidance on the Broadcasting Code and licence conditions in the following areas: measures to minimise lost or wrongly charged entries; fairness in competitions; and transparency in pricing.



According to Mr Ayre, 'phoning a TV show isn't like ordering pizza. When you put the phone down, nothing arrives: you just have to trust that your call was counted'. The 'Blue Peter' incident in March may have been the springboard for the inquiry, but the BBC should not be singled out because it is apparent that these failures are systematic and widespread.



If the public is going to continue to participate in such competitions, one thing is sure; to remedy their confidence is going to take more than a little bit of sticky-backed plastic.