Ofcom have rejected a complaint against the TV programme “Our Cops in the North” which claimed there was an infringement of privacy in obtaining and broadcasting footage featuring the inside of the complainant’s home and her daughter’s belongings. It was found that Ms K, on behalf of herself and her daughter (a minor), and Mr M had a legitimate expectation of privacy in broadcasting the footage, however this did not outweigh the broadcaster’s right to freedom of expression and the public interest in the programme.
This judgment shows that even where there is no express consent to obtaining the footage or its subsequent broadcast, there may be a genuine public interest justification, so long as the public interest is made clear in the programme and, in editorial terms, linked sufficiently to the disclosure of the information.
The public interest exception does still remain relatively narrow and so obtaining ‘informed consent’ within the meaning of the Ofcom Broadcasting Code is still a preferable option.
The episode in question of the BBC programme “Our Cops in the North” followed Northumbria Police’s investigation into a robbery at knifepoint. As part of this investigation, the police carried out a search of Mr M and Mrs K’s premises, which was filmed. This included footage of Mrs K’s daughter’s personal belongings and also showed Mr M’s driving licence and his car, as well as Mr M in the police station.
Mrs K complained that this was a breach of her, her husband and her daughter’s privacy as the footage was obtained without consent, and that the programme makers were allowed to enter the property during the search.
Ofcom found that the filming of the inside of Mrs K’s home and her daughter’s personal belongings showed the way they lived and did give rise to a legitimate expectation of privacy. However, there was a public interest justification for including this footage of the police search in the episode. This is because the footage showed a police search as part of an investigation into a serious and violent crime. There was no footage of Mrs K or her daughter, they were not named in the programme and the exact location was also not revealed. As such, on balance, the broadcaster’s right to freedom of expression and public interest outweighed the legitimate expectation of privacy in the footage.
The complaint surrounding Mr M also failed on this basis. While there was a legitimate expectation of privacy in the footage of Mr M in the police station, this was also outweighed, particularly due to the fact that Mr M pleaded guilty to the offence of aggravated burglary, and Mr M’s sentence had been widely reported in the local media.
This case bolsters the use of the defence of public interest in relation to real crime programmes. However, while in this case there was no sensitive information disclosed to the viewer, broadcasters should be alive to the fact that each case must be judged on its facts and just because individuals are not shown in the footage does not mean this exception will always prevail. The balance between the right to freedom of expression and public interest, and the right to privacy must be carefully weighed in accordance with the Broadcasting Code rules.