Undercover filming... you're being watched!
Ed Holmes looks at how you can protect your business from the unwelcome gaze of undercover reporters
The simplest answer to the question is, ‘don’t give them any reason to film you’, but this is not necessarily the practical solution. However, recent case law has made it very clear that there is little a care home can do to prevent the broadcast of footage covertly obtained by undercover reporters on its premises.
This issue recently came to light in the High Court, in the case of BKM Limited v. British Broadcasting Corporation [2009] EWHC 3151 (Ch). In that case a BBC reporter, posing as a student on a vacation scheme, had conducted secret filming in the home operated by BKM. The film footage, which purported to expose some significant shortcomings in the standard of care at the home, was to form part of a BBC documentary. The BBC contacted BKM inviting them to respond to allegation arising out of the footage and BKM applied to the Court to restrain the broadcast.
Mr Justice Mann declined to grant the injunction. He noted an impression that BKM was seeking to protect its own reputation, rather than any rights of the residents in the home, although this was not their stated case. Rather, they contended that the rights of the residents to respect for private and family life, under Article 8 of the European Convention on Human Rights (ECHR), would be infringed by the broadcast.
By contract, the BBC contended that its right to freedom of expression under Article 10 ECHR effectively overrode any right under Article 8. It further contended that the Court was prevented from granting an injunction under the terms of the Human Rights Act.
The Judge’s view was that, as a mater of public policy, the Court should not seek to restrain the broadcast of the documentary. The information in the film, as well as the concerns it exposed, were clearly matters in the public interest. Essentially, whilst neither the BBC’s Article 10 right nor BKM’s arguments regarding Article 8 should automatically take precedence, the Court must undertake a ‘balancing act’ between the two. In relation to this case, the level of any invasion of privacy was relevant and the BBC had confirmed that the identity of individual residents would not be revealed.
The Judge’s conclusion, in light of this balancing act, was that, “one cannot say that any portrayal of the residents will give rise to a sufficiently serious infringement of privacy rights to outweigh any public interest justification”.
It remains to be seen how the Court’s view may differ where the footage contains defamatory information, or where a resident or relative complains of an infringement of their privacy. In the meantime, the lesson for care home operators to take from this is to pay special, attention to any suspicious behaviour, particularly on the part of temporary staff, but also to be prepared to receive some fairly robust advice in the event of their own premises becoming the subject of a covert film.
For more information please contact Edward Holmes at Thomas Guise Solicitors on 01905 723131 or by email to edward.holmes@thomasguise.co.uk