Privacy

Introduction

Since fairness and privacy issues are often closely related, this section should be read in conjunction with 'Fairness'.

The Ofcom Code contains the following rule:
"Any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted."

Accordingly, it is important to be able to demonstrate why any infringement of privacy is justified. In most cases, such justification will either be that the individual has consented or that the public interest outweighs the privacy infringement.

 See: Section 8 of the Ofcom Code

The legal protection of privacy

English law recognises a right to privacy – misuse of private information - and will intervene to protect individuals' privacy rights. A court which is considering granting an injunction preventing broadcast/publication of a piece of content on the basis of an infringement of privacy  will probably  consider the extent to which the broadcaster/publisher has complied with the Ofcom Broadcasting Code.

Accordingly, compliance with the privacy rules and practices contained within the Code is likely to ensure compliance with the law.

Human Rights Act 1998

Since the introduction of the Human Rights Act 1998 which incorporated the European Convention on Human Rights ("ECHR") into UK law and which, by Article 8, guarantees a right to privacy, individuals can now seek to enforce that right through the courts. Individuals and organisations can seek an injunction to prevent broadcast or publication of content which unjustifiably infringes their privacy or, after broadcast/publication, may sue for damages.

Right to Privacy -v- Right to Freedom of Expression

When deciding whether or not there has been or is likely to be an infringement of privacy and, if so, whether or not it is justified, the court, taking into consideration all the facts and circumstances of a particular case, will seek to balance the individual's right to privacy, under Article 8, with the content creator's and broadcaster's right to freedom of expression under Article 10 of the ECHR.

Public Interest & Compliance with the Code

The law states that wherever a court is considering granting an injunction preventing broadcast or publication of content, the court must have particular regard to the extent to which it is or would be in the public interest for the material to be published and also the extent to which (in the case of a broadcast) the broadcaster has complied with 'any relevant privacy code', in this case the Ofcom Broadcasting Code. Accordingly, whether or not the broadcast or publication is justified will generally turn on whether or not there is an overriding public interest, which is consistent with the privacy provisions of the Code.

A detailed discussion of the law of privacy is outside the scope of the 4Compliance website. Compliance with the privacy rules and practices contained within the Code will assist in ensuring that a programme complies with the law.

Protection from Harassment Act 1997

The Protection from Harassment Act 1997 makes it a criminal offence to engage in a course of conduct which amounts to harassment and also offers civil remedies. There is no specific defence for journalists. 

This piece of legislation can have implications for journalists and their activities, and creates both civil and criminal liabilities for journalists.

It is a criminal offence to engage in a course of conduct which one knows or should know amounts to harassment of the subject. The maximum penalty is 6 months imprisonment or a fine. There is no specific defence for journalists. The only relevant defences are the prevention or detection of crime which are unlikely to apply to journalists; or that in the circumstances the conduct was reasonable.

The Protection from Harassment Act 1997 was amended (by the Protection of Freedoms Act 2012). Section 2A makes it a separate offence for a person to pursue a course of conduct which amounts both to harassment in breach of s1(1) of the Act and amounts to 'stalking'. The Act contains a somewhat circular definition of "stalking" and includes examples of activities associated with stalking e.g. following a person, contacting, or attempting to contact, a person by any means, watching or spying on a person. The maximum penalty for this offence is 51 weeks imprisonment or a fine.

Section 4A creates a further offence involving stalking where there is fear of violence or serious alarm or distress - a person commits an offence where they pursue a course of conduct which amounts to 'stalking' and which they know will cause, and does cause the victim either to fear the use of violence on at least two occasions, or causes the victim serious alarm or distress, which has a substantial adverse effect on their usual day to day activities. The maximum penalty for this offence is 5 years imprisonment or a fine. Again, there are a few specific defences in the Act including that the conduct was pursued for the purpose of preventing or detecting crime.

In addition, through a civil action, the subject of the harassment can:

1. Seek damages from the harasser for any anxiety caused and for any resulting financial loss;
2. Apply for an injunction after only one act of harassment if they can show that future harassment is likely; and
3. Apply to the court for an arrest warrant to be issued if the harasser breaches any court order.

The types of activity which could be problematic are:

• long lens photography;
• doorstepping;
• interviewing/speaking to friends, business associates and family about the subject, without the consent of the subject;
• contacting a subject after he/she has refused to comment;
• continuing to film a subject after they have asked for filming to stop.

Compliance with the provisions of the Code on fairness and privacy would assist in any defence. 

See also:

• Filming techniques
• Fairness

Computer Misuse Act 1990

Accessing a computer without proper authorisation ("Computer Hacking") is a criminal offence.

It is an offence under the Act to cause a computer to perform any function with intent to secure unauthorised access to any program or data held in the computer. The Act itself does not contain a public interest defence.

INVESTIGATORY POWERS ACT 2016 ("IPA")

IPA makes it a criminal offence to intentionally and unlawfully intercept communications by post, phone or other telecommunications systems. Phone hacking and accessing someone else's voicemail messages without consent is caught by this Act. The Act itself does not contain a public interest defence.

IPA does not generally affect journalists recording telephone conversations to which they are a party either for research purposes or with a view to broadcast/publication.

Wireless Telegraphy Act 2006

This Act makes it an offence for a person without authority to use wireless telegraphy apparatus with the intention of obtaining information as to the contents, sender or addressee of a message (whether sent by means of wireless telegraphy or not) and prohibits the disclosure of such information.

Public Interest

If the broadcast/publication of content is said to be "in the public interest" it means that it serves beneficially the well-being or interests of the public or society generally. There is no exhaustive definition of what constitutes the public interest, but it is generally accepted to include the following:

• Exposing or detecting crime, corruption, antisocial behaviour or injustice;

• Exposing lies, hypocrisy or misleading claims made by individuals or organisations;

• Protecting public health or safety;

• Disclosing incompetence, negligence or dereliction of duty, that affects others;

• Exposing dangerous or exploitative behaviour that could harm others.

Any act that relies for its justification on the public interest should be proportionate to the interest served - that is in relation to privacy, the more significant the infringement, the greater the public interest will need to be in order to justify it.

Privacy issues (as with issues of fairness) can roughly be divided into those relating to individuals or organisations actually taking part or featured in content - "contributors"; and those not taking part but who are otherwise referred to - "non-contributors".

Privacy of people under 18 and vulnerable adults

Particular regard must be paid to the privacy of people under 16 (see section 8 of the Code), whether they are a contributor to content or not.

The same principles apply to vulnerable people- consent to film and broadcast/publish content including a vulnerable person should be sought from that person's primary adult carer.

Furthermore, people under 16 should not normally be asked questions about private matters without the consent of one of their parents or guardian; or, in the case of a vulnerable person, without the consent of their primary adult carer, unless it is warranted to proceed without such consent.

See also: 

• Filming with under-18s 
• Duty of Care

Privacy & Contributors

The extent to which contributors waive their rights to privacy when consenting to take part in programmes clearly depends on the nature of the contribution. However, it should always be made clear to potential contributors before they agree to take part the extent to which filming will or is likely to infringe upon their privacy.

Filming in public and semi-public places

When filming in public places, for example on the streets, in parks, on public highways, and semi-public places, for example shops, bars, institutions, content creators are only likely to need to obtain the express consent of those that make a significant contribution - those that the camera is following or that speak to camera, or whose words are caught on camera, unless what they say is trivial and inconsequential. Generally, you will not need to obtain the express consent of random people that are merely passing by or who are caught on camera in the background, unless they are to be shown in a negative or pejorative context, thereby requiring consent or the concealing of identities, for example by pixilation.

However, there will be circumstances where individuals, even in public places, have a legitimate expectation of privacy, for example when they are featured prominently in shot or they are in distress or receiving medical treatment, and to film and, further, to broadcast/publish such footage would amount to an unwarranted infringement of their privacy. In such circumstances, in the absence of any public interest justification, it is unlikely that the footage could be broadcast/published without the express consent of those filmed or their identity being obscured.

If an individual's or organisation's privacy is being infringed by filming and they ask that filming or recording stop, content creators should normally comply, unless it is warranted to continue, for example it is in the public interest.

When filming on private property, even where it is open to the public, for example shops, bars, shopping malls, content creators should, wherever possible, first obtain the consent of the legal owner or person in charge of the location to film there, unless there is justification for not doing so. Often consent may be granted but subject to certain conditions, for example seeking the individual consent of staff or members of the public caught on camera, which if agreed to should be honoured.

When filming on private property, if the owner or person in charge requests that filming stop, this should normally be complied with unless there is good reason not to, for example the public interest justifies continuing. Where this occurs, inform the content lawyer/compliance advisor as soon as possible thereafter as a trespass may have been committed.

In some semi-public places, where there is a greater expectation of privacy and particularly where people may not wish to be caught on camera, for example doctors' waiting rooms, it may be appropriate (and it may be a condition of filming there) to alert members of the public to the fact that filming is taking place, for example by  putting up  a sign (or making an announcement) stating that filming is taking place, explaining briefly what the content is about and advising anyone that does not wish to be filmed to avoid the camera or alert a member of the production team.

'Sensitive' places/situations

Filming in sensitive places, for example in hospital wards, ambulances, A&Es, schools, prisons, police stations etc., (unless undercover in which case see 'Deception and setups', and 'Secret filming guidelines') is only likely to be possible after negotiation with the person or organisation in charge of the location in question. However, even where consent is granted, careful consideration must be given to the individual fairness and privacy rights of those that may be filmed. The fact that general permission to film has been given does not mean that individuals have consented to being filmed and that footage can be broadcast/published. Depending on the circumstances, it may be that alerting individuals or members of the public through the use of signs or announcements will suffice but, in certain circumstances, where there is a greater expectation of privacy, it may be appropriate or even essential to seek the individual consent of each and every person shown (or if that is not possible conceal their identities on broadcast/publication). Separate consent will be required in sensitive places/situations for both filming and for broadcast/publication.

Wherever there is an intention to film in a sensitive place or there is doubt about whether or not individual consents are required, please seek early advice from the content lawyer/compliance advisor.

If content is made of a sensitive nature, clearly contributors will need to be made aware of the context in which they will appear, for example if the content is about 'date rape', those filmed should be informed when they are giving consent.

 

Privacy & Non-Contributors

Privacy can be infringed in many ways: people may talk about people they know, particularly people close to them, such as friends and family. They may say things, online, about people they know which are of a private nature and which, if published, would constitute an unwarranted invasion of that person’s privacy. These people have not agreed to take part in this project, and it could not, therefore, be argued that they had consented to information of a private nature being disclosed about them online.

Even a seemingly innocuous remark may constitute an unwarranted invasion of a person’s privacy. For example, a relative has cancer. Even though true, that person may not wish that to be public knowledge.

Revealing private information

An individual's privacy may be infringed by revealing to a wider audience private information about them, for example details of their sex life or family life, regardless of whether or not they are filmed. For example, a divorced spouse who is talking about intimate details of his/her former marriage may be infringing the privacy of his/her former spouse - any such infringement must be warranted. Once again, in the absence of consent, any infringement of privacy must be justifiable in the public interest. The right to freedom of expression coupled with the public interest should 'outweigh' the privacy right that is being infringed.

What amounts to "private information" and whether revealing it, or repeating it, would constitute an unwarranted infringement of privacy depends on a number of factors, which normally would include: the nature of the information; whether or to what extent the information is already in the public domain and, if it is, how it got there; and whether the individual concerned is an ordinary member of the public or is a celebrity or someone in the public eye.

The Ofcom Code recognises that people under investigation and those in the public eye and their immediate family and friends retain the right to a private life although private behaviour can raise issues of legitimate public interest, for example there may be an overriding public interest in exposing and exploring publicly in a piece of content the private life of a politician, if that conflicts with, adversely affects or raises serious questions about their public life.

Identifying where people live

Information which discloses the precise location of where people live, including celebrities, should not normally be revealed unless it is warranted to do so, for example they have consented, the information is already widely known, or it is in the public interest to do so.

Note: it may be possible to show the house where a particular individual lives without actually identifying where it is, that is not giving the house number or naming the street.

Similarly, care must be taken not to disclose personal e-mail addresses or telephone numbers without consent.

Identifying third parties

The identity of the family members or friends of those under investigation should not be revealed unless it is warranted to do so.

Re-use of material

When incorporating into a piece of content archive footage or material which has been filmed or recorded for another programme or purpose, content creators must ensure that this does not result in an unwarranted infringement of privacy, or cause any unfairness.

Suffering & Distress

Emergencies, accidents & personal tragedy

When reporting on emergencies, accidents and/or personal tragedy or making references to such events within content, the public interest in full, open and accurate reporting and the right to freedom of expression must be carefully balanced with the need to be compassionate and the privacy rights of those involved, so as to avoid any unwarranted infringement of privacy or unjustified offence.

People caught up in such events, for example victims, should only be shown where there is strong editorial justification and broadcast/publication is in the public interest, or those filmed have consented to be filmed for broadcast/publication.

People in distress, for example victims or the grieving relatives of victims, should not be placed under any pressure to be interviewed or to be filmed. It may be appropriate to make any requests for interviews through an intermediary, for example a relative, friend or advisor.

Showing people dying, being killed or murdered, particularly the point of death, will require exceptional justification and must be justified editorially, by the public interest and, in relation to the potential effect on viewers, by the context. 

Where people have died or are the victims of accident or violent crime, care should be taken not to reveal their identity, unless and until it is clear that their next of kin have been informed. Any exception to this rule must be justified by the public interest or otherwise for example if immediate publication of the deceased's identity might help in the apprehension of a criminal.

Revisiting past events

When making and broadcasting/publishing content, including dramatisations, that concern real past events that have involved trauma to individuals, for example natural disaster, accident, human violence or crime, careful consideration should be given to the likely impact on those involved, for example any victims or their close relatives.

Where reasonably practicable, those whose experience is to feature, or their close family, should normally be informed of the plans to make such content, including when it will be broadcast/published, even where the events or material is in the public domain and widely known, and where victims are not named but would be recognisable from the events.

Handling confidential information

The law seeks to protect confidential information by preventing those who have obtained confidential information from taking unfair advantage of it, for example an employee improperly divulging the secrets of his/her employer.

Historically, the courts required that a 'relationship' of confidence existed between the person seeking to disclose information and the person seeking to protect it e.g. employer/employee. However, the relationship of confidence has been greatly expanded and now, as long as the surrounding circumstances denote that the information is confidential, this will likely suffice for the purposes of seeking the protection of the law.

Often, particularly in current affairs content, content creators may come by information that is clearly confidential and the question arises whether or not there is justification to publish that information to a wider audience.

Wherever a piece of content may reveal confidential information, advice must be sought from the content  lawyer/compliance advisor at an early stage.

How confidential information is protected

If confidential information is published/broadcast without authorisation, then the individual or organisation whose confidence has been betrayed may be able to sue for damages. In addition, if the individual or organisation becomes aware of the intention to divulge the confidential information before broadcast/publication, they will often apply to the court for an interim injunction i.e. a temporary order preventing broadcast/publication until the matter can properly be decided at a later trial. 

If an interim injunction is granted, even against some other media organisation, all media organisations who are aware of the injunction will be similarly bound by it. To breach an injunction is to commit contempt - a criminal offence.

The law of confidence has been widely used to prevent publication of all kinds of confidential information, for example companies use it to prevent their commercial and trade secrets being divulged; governments use it (often in conjunction with Official Secrets legislation) to prevent defence and intelligence staff and, in turn, journalists from divulging protected information which could be damaging to the national interest; and individuals including celebrities and politicians have used it to try to keep matters about their personal lives private (more recently using 'misuse of private information' as a cause of action). Moreover in some factual situations causes of action in both breach of confidence and misuse of private information will coexist.

Public interest defence to broadcasting/PUBLISHING confidential information

The main defence to any legal action, including an injunction, for breach of confidence, is that there is an overriding public interest in publication - the public interest in publication is greater than the public interest in maintaining the confidence.

In resisting any application for an injunction or any action for damages, it would be demonstrated that publication/broadcast was in the public interest, for example it was necessary to expose crime, corruption, anti-social behaviour or injustice.

The Director of Public Prosecutions has issued guidance saying that the issue of public interest must be considered before journalists are prosecuted in connection with news gathering activities.

Confidential information protected by contract

Confidential information may also be protected by the law of contract, for example employers may make it a term of their employment contracts that staff are bound not to disclose confidential or private information to third parties which they have come to know as a result of their employment. Whether a court will act to enforce such confidentiality clauses will normally turn on the nature of the confidential information to be disclosed and whether, in all the circumstances, it is in the public interest that the confidentiality clause be enforced or not. Employees or whistle-blowers are now further protected under the Public Interest Disclosure Act 1998, where they are dismissed or victimised for making a protected disclosure of information.

To gain protection from dismissal as a "protected disclosure" a whistleblower would normally have to raise his concern to his employer or a designated body (who are mainly regulatory bodies such as the Bank of England, Charity Commissioners, Food Standards Agency). 

It could be grounds for dismissal if a whistleblower did not raise the issue internally or to a body designated under the Act – i.e. not much protection.

Since April 2014 the list of those to whom disclosures can be made to become a "protected disclosure" has been extended to MPs. In practical terms this means if a journalist is contacted by a whistleblower about concerns / issues at work, some protection may be gained for the whistleblower by raising the issue with an MP. 

Producer data protection & security guidelines (GDPR)

• Broadcasters and content creators must comply with the provisions of the Data Protection Act 2018 and the GDPR, which protects individuals' personal privacy rights and the way personal information ('personal data') about them is gathered, 'processed' and stored. The act contains a number of principles that people 'processing' personal data, including programme-makers, journalists and editorial staff, must comply with and provides even greater protection to special categories of data (such as race, criminal history, religious beliefs or sex life). It also grants the data subject a number of rights in relation to the information that organisations hold about them.
   
• Personal information which is processed only for journalistic purposes may be exempt from many provisions of the Data Protection Act which otherwise would stifle and prohibit honest journalistic practices. However, the journalistic exemption only applies in certain circumstances.

• In July 2023 the Information Commissioner’s Office (ICO) published the “Data protection and journalism code of practice” which should be considered when making any content.  See ICO Data protection and journalism code of practice

See also:

• GDPR Pan Industry Guidelines 2018
• Channel 4 GDPR Guidance note 2019
• GDPR Crew Data Protection Guidelines

Related links

• Protection from Harassment Act 1997
• Human Rights Act 1998
• Protection of Freedoms Act 2012
• Section 8 of the Ofcom Code 
• Public Interest Disclosure Act 1998 
• European Convention on Human Rights "ECHR"
• Computer Misuse Act 1990
• The Regulation & Investigatory Powers Act 200 (RIPA)
• Wireless Telegraphy Act 2006
• Data Protection Act 1998
• GDPR Pan Industry Guidelines 2018
• GDPR Crew Data Protection Guidelines

Internal links:

• Fairness
• Secret filming guidelines
• Channel 4 GDPR Guidance note 2019
• Filming techniques

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