Ofcom has upheld a privacy complaint against the BBC over the broadcast of footage that showed the dying moments of journalist Lyra McKee. In its decision, Ofcom found that including the footage in BBC Two’s Newsnight report amounted to an unwarranted infringement of Ms McKee’s right to privacy, representing a “very significant intrusion” that had caused her family a great deal of distress. This was not outweighed by the BBC’s right to freedom of expression, the audience’s right to receive information and ideas without interference, or the public interest in broadcasting the footage. Ms McKee’s family had not been informed that the footage was to be included, and so they could not give (or withhold) consent to its inclusion.
Rights on behalf of deceased persons
Complaints to Ofcom
It is noteworthy that the complaint was made on behalf of a deceased individual, rather than her next of kin. Privacy complaints may be made to Ofcom on behalf of a deceased individual, under section 111(2) of the Broadcasting Act 1996. Such complaints are, however, few and far between – probably because broadcasters generally abide by practice 8.19 of the Code, which requires broadcasters to try “to reduce the potential distress to victims and/or relatives when making or broadcasting programmes intended to examine past events that involve trauma to individuals (including crime) unless it is warranted.” In this instance, though, the programme makers failed to inform Ms McKee’s next of kin of the plans for the programme and its intended broadcast.
Whether or not a privacy claim may be made in the courts on behalf of a deceased individual remains untested. It has been suggested by some commentators that post-death publication of private information could give rise to a limited cause of action. Yet a claim on behalf of a deceased individual might well fail if its only aim were to vindicate rights related to individual dignity and hurt feelings.
It is noteworthy that Ofcom found that the BBC was required to provide a clear explanation to Ms McKee’s family of the footage that the BBC were planning to include in the programme. It is unusual for Ofcom to be so specific, but it was reflective of the highly sensitive and private nature of the footage.
There is no doubt that the BBC’s public-interest argument was compelling, that the decision to include the footage was finely balanced and not taken lightly, and that the intention behind the broadcast was creditable. As Ofcom’s finding makes clear, though – and as the BBC accepted in a statement following publication of Ofcom’s finding – it should not have used the footage without obtaining the informed consent of Ms McKee’s family.
To read the full article, click here. Written for Entertainment Law Review.