A couple, Shakir Ali and Shahida Aslam, whose eviction was included in an episode of Channel 5’s ‘Can’t Pay? We’ll Take It Away!’ have been awarded £20,000 damages in the High Court for misuse of their private information. Although Channel 5 had editorial discretion over the way in which it told the story, and while the programme contributed to a debate of general interest, the inclusion of the couple’s private information in the programme went beyond what was justified.
This judgment serves as a cautionary tale to programme-makers to put robust compliance procedures in place for their film crews’ dealings with contributors, in particular for obtaining ‘informed consent’ within the meaning of the Ofcom Broadcasting Code, unless there really is a sufficient and genuine public interest justification for not doing so.
If a programme-maker is reliant on public interest to justify what could otherwise constitute a misuse of private information, it will be important to ensure that the public interest is made clear in the programme and, in editorial terms, linked sufficiently to the disclosure of the information.
The purpose of the programme, an observational documentary, was to explore the growing problem of debt by depicting the work of High Courts Enforcement Agents (HCEAs). Footage used in the programme was largely filmed inside the couple’s home during their eviction without prior warning, and showed the couple in a state of distress and shock amid taunts from their landlord’s son. As such, the court ruled that the couple had a reasonable expectation of privacy in the footage.
The court accepted that the programme contributed to a debate of general interest, since the programme’s purported aim was to look at increasing levels of personal debt, rent arrears of tenants in privately rented accommodation, the dependence of tenants on benefits, and the enforcement of writs of possession by HCEAs. However, the court held that the extent of the use of the couple’s private information went beyond what was necessary for that purpose. Further, the court considered that the programme focussed more on the drama of the conflict between the landlord’s son and the couple (indeed, the conflict was encouraged by one of the HCEAs to heighten the drama), rather than on the matters of public interest.
Upon the HCEA’s arrival the couple agreed to be interviewed on camera, however the couple’s consent was not informed as the couple were not told who the film crew were, what the nature of filming was (the programme), nor that the HCEAs were effectively filming for the programme using body cameras. After the eviction, Mr Ali telephoned the producer and explained that he objected to being on television. The court held that this was an unequivocal revocation of consent.
Commentators have speculated that this case could spell the end of so-called ‘poverty porn’ documentaries, which have been criticised for making entertainment from deprivation. Yet, given the popularity and consistently high viewing figures of such documentaries, this seems unlikely. As noted above, documentary makers should ensure that any programme which relies on a public interest justification for its content should have a clear link between the content and the matter of public interest. In addition, robust compliance procedures are necessary for any crew members interacting with contributors.
Shakir Ali and Shahida Aslam v Channel 5 Broadcast Ltd  EWCH 298 (22 February 2018).