DCBL...Can't Pay? We'll Take it Away....High Court orders Channel 5 to pay costs of £20,000.

[SuperVillain]

An interesting read that Judgment.

 

Now that the Claimants have money, could the landlord could pursue them for the rent arrears?

[HCEOs]

An interesting read that Judgment.

 

Now that the Claimants have money, could the landlord could pursue them for the rent arrears?

 

Yep. The evictees would do well to settle the judgment debt as soon as possible.

[HCEOs]

I've always thought a complaint to the LCD is the way to go. At the very least it is informing them of what is happening.

 

I'm not sure they care. But with enough bad PR it would eventually reach their desk.

[Bailiff Advice]

It's my understanding that Sandbrook claims to remain a UK resident to the HCEOA for the purposes retaining her HCEO authorisation. I don't know if this is true and wonder if an FOI request may confirm this. I'm sure Master Fontaine would be less than impressed if it was proved that Sandbrook lived in the US.

 

I think that I am right in saying (and please correct me if I am wrong) that it would be for the HCEOA to make a complaint to Master Fontaine and she in turn would then approach the LCD.

 

Has there ever been a case where the LCD removed the certificate from a High Court Enforcement Officer?

[ploddertom]

 

I think that I am right in saying (and please correct me if I am wrong) that it would be for the HCEOA to make a complaint to Master Fontaine and she in turn would then approach the LCD.

 

Has there ever been a case where the LCD removed the certificate from a High Court Enforcement Officer?

 

 

I would hazard a gues and say no.

But do the HCEOA have the whatnots to do it - they have certainly known about the situation for long enough.

[brassnecked]

I would hazard a gues and say no.

But do the HCEOA have the whatnots to do it - they have certainly known about the situation for long enough.

They probably don't care. They are confirming Lord Denning's opinion from last Century that Enforcement is medieval and has no place in a modern world. The likes of Sandbrook and Bohill only seem to show Denning was probably correct. They do no favours to the HCEO's that do the job correctly.

[HCEOs]

I think that I am right in saying (and please correct me if I am wrong) that it would be for the HCEOA to make a complaint to Master Fontaine and she in turn would then approach the LCD.

 

Has there ever been a case where the LCD removed the certificate from a High Court Enforcement Officer?

 

The process has never been very clear but I think the HCEOA's complaint goes to the Senior Master. What I would say is that to be an HCEO you have to be a member of the HCEOA. I can't remember the exact reason but there are issues with the HCEOAs own membership regs that make it difficult to kick someone out.

 

I know of two HCEOs that had their authorisations removed. One for theft of client monies and on the other it was never really clear to me but it was the brother of two other HCEOs. On the former even though the HCEO admitted the crime it still took significant effort to get their authorisation removed.

[Peterbard]

All sounds very insestuous to me.

 

Are you saying the only way get rid of a HCEO who is abusing public trust is via the hcea. I thought they were answerable to the public like every other authority, there have been breaches of himan rights act, have there not.

[brassnecked]

DB Looks like Enforcement and the Human Rights Act are mutually incompatible in some circumstances. The end justifies the means, debtor owes so must pay.

[MaxxPower]

This show seems to be popular in America for some reason.

The US Netflix has it up for streaming and recently added a third series to the selection over there.

[brassnecked]

This show seems to be popular in America for some reason.

The US Netflix has it up for streaming and recently added a third series to the selection over there.

The Yanks will probably look on at Bohill in awe as he doesn't seem to need a gun to do the job.

[DragonFly1967]

BA... Did you manage to get any answer to the question in post #39?

[MaxxPower]

Interestingly I saw a repeat of an older episode I've seen before last night.

The faces of people involved are now blurred out, yet when that episode aired previously there was absolutely no blurred faces and you could clearly see who it was. Wonder if Channel 5 are going back and desperately blurring faces of people after this ruling for all their repeat versions of programs.

[stu007]

DragonFly1967 it was £10.000 for each Claimant: https://www.judiciary.gov.uk/judgments/shakir-ali-and-shahida-aslam-v-channel-5-broadcast-limited/

 

Looking at the matter in the round, I consider that an appropriate sum of damages is £10,000 for each Claimant. I would have awarded a higher figure if it had not been for the postings by the Ahmeds.

[DragonFly1967]

stu007. I realise that. But that is damages and does not mention costs.

 

The question was, having been awarded £10,000 each in damages, did Ch5 also have to pay the couples legal costs, are they liable for their own costs or was the case taken pro bono?

 

This is where the thread title is confusing. The judgement says "damages" but does not mention costs. The thread title says "costs" but does not mention damages.

[HCEOs]

No mention of the fact that their HCEO, Claire Sandbrook (Shergroup) appears to have little to no control over the EAs from her rented house in Florida either...

 

Sandbrook's US residence confirmed today... https://beta.companieshouse.gov.uk/company/04771589/filing-history

[silverfox1961]

Today, OFCOM has upheld another privacy case by these chancers.

 

 

https://www.ofcom.org.uk/about-ofcom/latest/bulletins/broadcast-bulletins#accordion__target-88630

 

 

It's one hell of a long read but well worth it. The decision starts on page 27. I can see yet another case Channel 5 will have to pay out.

 

 

This story is again, DCBL using body worn cameras issued to them by the production company meaning that all of the images and sound belong to them and not DCBL. I can see there being more cases in the future especially ones recorded after the new GDPR rules came into play.

[Bailiff Advice]

Well spotted Silverfox !!

 

It is indeed a long read and the decision itself runs to 17 pages. I have taken the opportunity to post the decision here as it may be easier to read:

 

Decision

 

Ofcom’s statutory duties include the application, in the case of all television and radio services, of standards which provide adequate protection to members of the public and all other persons from unwarranted infringement of privacy in, or in connection with the obtaining of material included in, programmes in such services.

 

In carrying out its duties, Ofcom has regard to the need to secure that the application of these standards is in the manner that best guarantees an appropriate level of freedom of expression. Ofcom is also obliged to have regard, in all cases, to the principles under which regulatory activities should be transparent, accountable, proportionate and consistent and targeted only at cases in which action is needed.

 

We carefully considered all the relevant material provided by both parties. This included a recording and transcript of the programme as broadcast, and both parties’ written submissions and supporting material. We also examined the unedited footage of the HCEAs’ visit to Mr and Mrs T’s home as well as the unedited footage filmed by the programme makers. We also took account of the supplementary material relating to the body camera arrangements between the HCEA company and the programme makers and Channel 5’s representations on Ofcom’s second Preliminary View. Ofcom considered the representations made by the broadcaster on its reasoning (insofar as they are directly relevant to Ofcom’s consideration of the complaint as entertained) and concluded that the points raised did not materially affect its decision to uphold the complaint.

 

In Ofcom’s view, the individual’s right to privacy under Article 8 of the ECHR has to be balanced against the competing rights of the broadcaster’s right to freedom of expression and the audience’s right to receive information under Article 10. Neither right as such has precedence over the other and where there is a conflict between the two, it is necessary to intensely focus on the comparative importance of the specific rights. Any justification for interfering with or restricting each right must be taken into account and any interference or restriction must be proportionate.

 

This is reflected in how Ofcom applies Rule 8.1 of the Code which states that any infringement of privacy in programmes, or in connection with obtaining material included in programmes, must be warranted.

 

In addition to this rule, Section Eight (Privacy) of the Code contains “practices to be followed” by broadcasters when dealing with individuals or organisations participating in, or otherwise directly affected by, programmes, or in the making of programmes. Following these practices will not necessarily avoid a breach of Rule 8.1 and failure to follow these practices will only constitute a breach where it results in an unwarranted infringement of privacy.

 

a) Ofcom considered Mr and Mrs T’s complaint that their privacy was unwarrantably infringed in connection with the obtaining of the material included in the programme as broadcast as set out under the “Summary of the Complaint section” above.

 

Ofcom had regard to Practices 8.5, 8.7 and 8.9 of the Code. Practice 8.5 states that any infringement of privacy in the making of a programme should be with the person’s and/or organisation’s consent or be otherwise warranted. Practice 8.7 states that if an individual or organisation’s privacy is being infringed, and they ask that the filming, recording or live broadcast be stopped, the broadcaster should do so, unless it is warranted to continue. Practice 8.9 states that the means of obtaining material must be proportionate in all the circumstances and in particular to the subject matter of the programme. Ofcom also had regard to Practice 8.13 which states that surreptitious filming or recording should only be used where it is warranted.

 

We assessed the extent to which Mr and Mrs T had a legitimate expectation of privacy in the particular circumstances in which the relevant material was obtained. The test applied by Ofcom as to whether a legitimate expectation of privacy arises is objective: it is fact- sensitive and must always be judged in light of the circumstances in which the individual concerned finds him or herself.

 

The unedited footage showed that most of the filming of Mr and Mrs T was from the cameras worn by the HCEAs in their private home discussing their financial and personal circumstances with the HCEAs. In particular, Mr T was filmed as he explained the circumstances which had led to the Writ being issued against him; that he was in the process of winding up their previous digital marketing company due the financial difficulties it faced; and, that they had recently set up a new company. He was also filmed as he discussed with his wife and the HCEAs how best to resolve the matter, in particular, that he was currently unable to pay the money owed and needed a family member to repay the debt on his behalf. Further, Mr T was filmed as he disclosed that he and his wife had recently returned from a life in Spain where they had been living to reduce their outgoings because they were in debt; and, that they had rented their house in the UK to pay for the mortgage on the property and their rent while they were living in Spain. Also, the interior of Mr and Mrs T’s home, including several rooms and their personal belongings, as well as a poster made by their friends welcoming Mr and Mrs T home, were filmed as the HCEAs assessed whether or not there were any items of value in the property. The filming also revealed that they had little furniture and that their belongings were in disarray and mostly still in removal boxes.

 

We acknowledged from the unedited footage that Mr T later agreed to be filmed by the main camera crew outside his property in which he spoke about the matters raised in conversation with the HCEAs inside his home. We recognised that Mr T was filmed on his doorstep and by the programme makers outside his property. However, we understood from Mr T’s complaint that his concerns related solely to the material filmed by the HCEAs’ body cameras while they were inside his home.

 

Ofcom considered that from the outset of filming, Mr T had been aware of, and had asked about, the presence of the broadcast cameras used by the camera crew to film the HCEAs and that he had made it clear that he did not want the programme makers to film inside the house or to film his wife and, later, his uncle. The following conversations from the unedited footage illustrated this:

 

When the HCEAs arrived at Mr and Mrs T’s home and were invited in, the following exchange took place [Ofcom’s emphases]:

 

Mr T:

Mr Anglin: Mr T:

Mr Anglin: Mr T:

Mr Anglin: Mr T:

Mr Anglin:

 

“They’re not coming in [i.e. the camera crew].

 

No, no, but there’s a film crew, that’s my colleague [Mr O’Shaughnessy].

 

Hello [to Mr O’Shaughnessy].

 

Um, to let you know, there is a film crew out there.

 

Right.

 

They follow us about in relation to Channel 5.

 

Right.

 

I would suggest you speak with them. I’m not saying they’re going to show anything, it’s not my call. They would explain to you what your position is.

 

OK” to go, but not with a TV crew in there”.

 

Later in the unedited footage, the following exchange took place between Mr Anglin and Mr and Mrs T:

 

Mr T:

Mr T also told the HCEAs that a neighbour was in the house and was “just about to ask her

 

Mr Anglin: Mrs T:

Mr Anglin:

 

“Like I explained to your husband, there’s a film crew outside.

 

[unclear].

 

Let me just explain. They, they, um, they follow us up and down the country for Channel 5, Can't Pay, We'll Take It Away. You may not have – I'm not too sure what your options are with them, but I'd suggest that you speak with them, so you know what those options are. Because they can explain to you – they'll be able to explain to you what – what your rights

 

 

Since the camera crew never entered the house and it was clear from the footage when viewed in its full context that Mr T was not referring to the body cameras worn by the HCEAs Ofcom assumed that Mr T was referring to the camera crew outside the house and had meant to say: “out there”, rather than: “in there”.

 

Mr T:

Mr Anglin:

 

Mr T:

Mr Anglin:

 

are, which are – so if nothing else, they'd be interested in – in trying to help you, in some respect.

 

Well, how are they going to do that?

 

Well you need to speak to them because one, you need to know what rights you have in relation to what they do, in relation to whether or not this will be shown or not shown, I don't know if it will be. Other than them following us about I don't have an awful lot to do with them in that respect. And I don't wanna say anything that is incorrect, so what I can do, the – one of them can come in without their camera and have a chat with you so that you know where you stand. Ok... That's probably the best way if you don’t want them in here, ‘cos they're filming outside anyway. [unclear].

 

Well, if you ask them... We don’t want a film crew in.

 

No, one member will come in and explain. It’s easier that way, so I don’t get anything wrong, they can explain where they stand with what they do”.

 

At this point, one of the programme makers entered Mr and Mrs T’s house and explained that they are working on behalf of the production company that makes Can’t Pay, We’ll Take It Away for Channel 5. He said that they followed the HCEAs wherever they go on every job and asked Mr and Mrs T if they were happy for the camera crew to come in to their house to follow the story:

 

Mr T:

Crew member: Mr T:

Mrs T: Crewmember:

 

“Er, no.

You’d rather us stay outside?

Yeah.

Yeah, I mean this is our, you know, this is our personal home... Yeah".

 

Mrs T: “You won’t – you won’t film him outside?

Mr O’Shaughnessy: Well they’ll – they’ll – let me deal with that now. Mrs T: No, I don’t want him filmed, [Mr T].

Mr Anglin: Ok, we’ll deal with that. We’ll deal with that.

 

Mr Anglin:

 

Mrs T:

Mr Anglin:

 

Well, if he’s [the uncle] coming in 15 minutes, my colleague is going to speak to the film crew outside to make them aware of what’s going on and they’re going to...

 

If they [unclear] that they won’t film, [unclear] he won’t come [unclear]. I understand that, but my colleague will deal with that. We’ll be able to address that.

 

[to Mr T] Yeah, feel free to. Um and it's a good idea to speak to them just in – you know, because you might have a right grievance and you need to put your side. Um I don't know what they do and – I don’t even know when I'm on. You know, um that's that, I mean the programme's on tonight at nine o'clock, I don't think I feature, but the first I'll know about it is well if it's in the TV guide. It's like I do so much of it over the period and I don’t know what they do and what they're not gonna do”.

 

Further on in the unedited footage, the HCEAs and Mr and Mrs T were discussing how the debt would be being paid by Mr T’s uncle who was on his way to the house. The following exchange took place:

 

Later in the unedited footage, when speaking to the programme makers outside in the road, the following exchange took place between them and Mr T about filming his uncle:

 

Crew member: “How would you feel about us filming the last process with your uncle?

Mr T: Er, I'd rather not. He's 80. Um and my wife's like quite really upset, so er I'd rather not.

 

Crew member: I totally understand that. We'll, um, we'll stay outside. Ok. We'll – we'll come in and give you our details after”.

 

Ofcom was told by Channel 5 in its statement that the HCEAs routinely wore body cameras during their work “for their safety and in case of complaint or inquiry” and that these cameras “were not hidden”. However, in this instance, the body cameras being worn were, in fact, provided to the HCEAs by the programme makers with a view to potentially including all or part of the HCEAs’ interaction with Mr and Mrs T in the programme as broadcast.

 

In considering the way this material was obtained, we took account of Practice 8.13 which states that “surreptitious filming or recording should only be used where it is warranted. Normally, any infringement will only be warranted if: there is a prima facie evidence of a story in the public interest; there are reasonable grounds to suspect that further material evidence could be obtained; and, it is necessary to the credibility and authenticity of the programme”.

 

The Code defines “surreptitious filming and recording” as including “the use of long lenses or recording devices, as well as leaving an unattended camera or recording device on private property without the full and informed consent of the occupiers or their agent. It may also include recording telephone conversations without the knowledge of the other party, or deliberately continuing with a recording when the other party thinks that it has come to an end”.

 

We did not accept Channel 5’s representations on the second Preliminary View that Ofcom had not taken into account that the filming by the body cameras was for the protection and safety of the HCEAs and that Ofcom overstates any other purpose. Channel 5’s initial statement said that HCEAs routinely wore body cameras to record their interaction with members of the public while they are carrying out their official duties and that this was for personal safety reasons and in case of a complaint or inquiry. Ofcom had understood from this statement that these cameras belonged to the HCEAs and were used by them primarily for that purpose. However, the “Supplementary material” relating to the body cameras revealed that the body cameras were, in fact, the property of the programme makers who owned the entire copyright in the material recorded by the body cameras and had control of access to the footage by the HCEA company. As it had not been aware of the existence of these arrangements, Ofcom had reasonably assumed from the information originally provided by Channel 5 that the body cameras belonged to the HCEAs and therefore that the footage captured by them was taken and retained for official purposes.

 

Ofcom considered that it was apparent from these arrangements that the body cameras were not being worn by the HCEAs solely for the benefit of the HCEAs. Rather, the provision of the cameras by the programme makers and their ownership of the footage unequivocally showed the existence of an advance arrangement between the programme makers and the HCEA company which provided the programme makers with unfettered access to the footage recorded by the body cameras. A fundamental purpose of the cameras, therefore, was for the programme makers to obtain and retain footage for potential broadcast. The ownership and operation of the cameras guaranteed them exclusivity to the material recorded and enabled free, uninhibited access to Mr and Mrs T’s home as they interacted with the HCEAs. This afforded the programme makers a level of access that exceeded substantially any exposure which anyone in Mr and Mrs T’s position could possibly have expected at the time. As a consequence, the programme makers acquired access to unguarded interactions and disclosures within the confines of the domestic home and were able to observe and record sensitive and intimate exchanges between Mr and Mrs T, Mr T’s uncle, as well as with the HCEAs themselves, during a stressful and emotional event.

 

From the complaint made to Ofcom and the unedited footage provided by Channel 5, we observed that at no time during the filming were Mr and Mrs T made aware that the body cameras and the material recorded by them belonged to the programme makers and could subsequently be used in the television programme and this was not something they could reasonably have foreseen or appreciated. In fact, the actions of the programme makers in agreeing not to come inside the house and the various conversations between Mr and Mrs T and the HCEAs about the filming gave every indication that this was not the case. We recognised that broadcasters often obtain material for broadcast from third parties, but in this case, a camera crew was visibly present, and they agreed not to enter the house to film. We took into account the following exchange in the unedited footage between one of the HCEAs, the programme makers, and Mr and Mrs T about whether the programme makers could film inside their house [Ofcom’s emphases]:

 

Mr Anglin (to the programme makers):

 

“They’re happy for a member of the crew to come in without the camera crew to speak to them.

 

Mr T:

Mr Anglin:

 

Mr T:

Crew member:

 

Mr T:

Crew member: Mr T:

Mrs T: Crewmember: Mrs T: Crewmember:

 

Mrs T:

Crew member:

 

Mr T:

Mr Anglin:

 

We don’t want a film crew in.

 

No, one member will come in and explain. It’s easier that way, so I don’t get anything wrong, they will explain where they stand with what they do.

 

Shut the door please. Can you shut the door please? Yeah, sorry.

 

Hi, my name's [first name – who then explained the purpose of the filming by the camera crew].

 

...Um, are you happy for us to continue, to come in here and follow the story?

 

Er, no.

You’d rather us stay outside?

Yeah.

Yeah. I mean this is our, you know, this is our personal home. It’s... Yeah.

That you can’t get across in a film.

Ok.

It’s already hard enough as it is.

 

Ok, well as you can imagine, we go for all sorts of different stories, er with the agents, some of them, you know, are very – are very upsetting to do, very, er aggressive. I think this has a – from what I can gather, that you've got quite a strong case, um you know, you sound like quite honest people to me, so if, you know, you'd like to give your side of the story and want to give your version of the facts, that's something we'd be very interested in broadcasting as well. So, if you want to talk to the agents first and then I'll come back and speak to you at the end of the (unclear), alright?

 

Yeah. But that doesn't help the situation.

 

It might do because if they did decide to show it, it would go out very one- sided, and about two million people watch this programme every week. However, you might be able to bring some balance to it. That's completely up to you, it's not me to [unclear] it's...”.

 

 

In our view, this conversation and the subsequent action of the programme makers in withdrawing from the house would have sent a clear message to Mr and Mrs T that their interactions with the HCEAs inside their home would not be filmed by the programme makers for potential use in a television programme. This was misleading as it was in direct contrast to the actual position in light of the programme makers’ access to the material recorded by the body cameras. Indeed, from the unedited footage, we recognised that the entire conversation between the HCEAs and Mr and Mrs T (and later with Mr T’s uncle) inside the house was being relayed live via an audio feed to the programme makers outside the house, thereby enabling the programme makers to listen to the entire interaction between Mr and Mrs T and the HCEAs as it happened without the complainants’ knowledge. Neither the programme makers nor the HCEAs informed Mr and Mrs T of this fact at any time during the filming.

 

In these circumstances, it was significant that Mr and Mrs T were not made aware of the programme makers’ use of the body cameras, or the potential consequences of that filming. Taking all these factors into account, Ofcom considered that the material recorded of Mr and Mrs T and the interior of their home by the body cameras had been obtained by the programme makers surreptitiously notwithstanding the fact that the body cameras themselves were worn openly. An intrinsic purpose of the filming from these cameras was to obtain footage for potential broadcast and Mr and Mrs T were not made aware of this, irrespective of whether or not they were nevertheless aware of the body cameras. As a result, Mr and Mrs T would not have understood the full significance of the body cameras, particularly as they understood that the cameras belonging to the programme makers had remained outside the property. In these circumstances, the actions of the programme makers were akin to deliberately continuing with a recording when the other party thinks that it has come to an end. Similarly, by not making Mr and Mrs T aware of the full significance of the body cameras, the method in which this footage and the accompanying audio was obtained was akin to the programme makers leaving an unattended camera or recording device on private property without the consent of the occupiers. For all these reasons, Ofcom did not accept Channel 5’s argument (made in response to the second Preliminary View) that Mr and Mrs T had not been misled in relation to the filming.

 

Channel 5 submitted that the execution of a writ issued by the High Court is a public matter and that in this case, the execution of the writ was not a matter connected with the complainants’ private lives. It also said that the activities of HCEAs, the kinds of difficulties they face when executing their duties, the way the law is utilised or ignored and the impact on the lives of those affected by the activities of HCEAs are all matters of acute public interest. However, in Ofcom’s view, none of these arguments pointed to a prima facie story in the public interest of a type or order which would ordinarily warrant the use of surreptitious filming (as envisaged by Practice 8.13), particularly as the filming itself took place in a private home and concerned not simply the fact of the Writ or its enforcement, but Mr and Mrs T’s personal reaction to that event and their intimate interactions with one another in light of the situation which confronted them in their own home.

 

Ofcom’s decision on the issue of surreptitious filming has regard to the fact that an advance arrangement was in place between the programme makers and the HCEA company. This arrangement provided the programme makers with unfettered access to the footage recorded by the body cameras for the purposes of broadcast before any footage had been captured and in the absence of any prima facie evidence in this case of a sufficient public interest which would justify any privacy intrusion which would potentially arise from obtaining access to the official footage in question. Contrary to Channel 5’s assertions in its representations on the second Preliminary View, Ofcom considered that this was a case in which the programme makers acted “in the speculative hope of gathering material for potential broadcast”.

 

For the sake of clarity, while the ownership of the body cameras and the copyright in the footage was a notable feature of the arrangement, it was the fact that the body cameras were worn with the prior objective of obtaining footage for the purpose of broadcast, rather than the fact of the ownership itself, which was the material consideration in this part of Ofcom’s analysis (not least as it served to define the purpose for which the footage was obtained in the first place and allowed the programme makers unfettered access to, and use of, the footage which was recorded as a consequence).

 

The fact that the body cameras were worn with the prior objective of obtaining footage for the purpose of broadcast was not something which was explained to Mr and Mrs T, nor would it have been something which they could reasonably have foreseen or appreciated. In Ofcom’s view, this justifies classifying the manner in which footage was obtained as “surreptitious” in the sense envisaged by the Code. This would not be the case if Mr and Mrs T had been made aware at the outset that the footage was to be used for purposes of potential broadcast (rather than simply for the HCEAs own official use).

 

It is important for Ofcom to stress here that the Code does not prohibit the use of surreptitious filming. Indeed, it can be an important means of enabling broadcasters to obtain material evidence where, as envisaged by Practice 8.13, there is a prima facie evidence of a story in the public interest; there are reasonable grounds to suspect that further material evidence could be obtained; and, it is necessary to the credibility and authenticity of the programme. These important prior considerations, which arise because of the potentially significant privacy consequences which surreptitious filming may cause are designed to ensure that broadcasters do not use such methods indiscriminately, or without due cause in the speculative hope of gathering material for potential broadcast.

 

In this case, however, Ofcom does not accept that the public interest arguments submitted by Channel 5 were of sufficient order and weight to warrant filming of this nature in the circumstances, particularly given that the filming took place within the confines of a domestic home and was thereby able to record intimate and sensitive interactions between Mr and Mrs T and the HCEAs in that context. In Ofcom’s view, although Mr T was the subject of the High Court enforcement process, neither that fact, nor the public interest in programming which seeks to shed light on the issues and difficulties encountered by HCEAs, warranted the decision of the programme makers and Channel 5 to obtain footage of these particular events inside the complainants’ family home in this manner.

 

It is also important to emphasise that a failure to follow any of the practices in the Code will only constitute a breach of the Code where it results in an unwarranted infringement of privacy. In other words, a finding that a broadcaster has failed to follow Practice 8.13 (in relation to surreptitious filming) does not, in and of itself, automatically lead to an unwarranted infringement of privacy. Ofcom therefore proceeded to consider whether the complainants held a legitimate expectation of privacy in relation to the obtaining of the footage.

 

Ofcom considered that, ordinarily, personal and financial conversations and negotiations in which the individuals concerned felt that they could speak openly and where they understood that the matter they were talking about would be treated in confidence, could reasonably be regarded as sensitive and attract an expectation of privacy. Further, we consider that such conversations, particularly where they take place within the confines of a person’s home and where those involved are discussing potentially being unable to settle the debt themselves, is a situation that could reasonably be characterised as distressing and sensitive for those involved. We recognise too that the execution of the Writ may have been a matter of public record, however, we do not consider that this fact, of itself, prevents a person subject to those proceedings from having an expectation of privacy in relation to the matter.

[Bailiff Advice]

Decision continued:

 

Factors specific to Mr T

 

In this case, Mr T was approached by the HCEAs without any prior warning that they would be accompanied by a camera crew. He was questioned about an outstanding debt and informed that there was a Writ against him and his company which allowed the HCEAs to seize items in the property if the debt was not repaid in full forthwith. Mr T was therefore obliged to respond to the HCEAs and to discuss financial matters with them irrespective of the presence of the cameras.

 

Additionally, the conversations took place within Mr and Mrs T’s home without the camera crew being present and were filmed solely by the body cameras belonging to the programme makers and worn by the HCEAs. As set out above, the evidence strongly suggested that Mr and Mrs T were not aware that this material might be broadcast. Both Mr and Mrs T were therefore considerably more unguarded when dealing with the HCEAs than might have been the case if they had reason to believe that they were still being filmed for the purposes of a television programme.

 

The information revealed by Mr T during his conversation with the HCEAs included the following in particular:

 

Their previous digital marketing company owed about £35,000 in VAT and they were in the process of an individual voluntary arrangement to wind it up; the company was in trouble following a project which fell apart after several months when the client pulled out and disputed the work they had done; they could not afford to pay any debts, so they rented out their house and moved to Spain to reduce their outgoings; they used the income from renting their house to keep the mortgage going and to pay their rent in Spain; as a result, they just managed to “survive” and to keep the house from being repossessed; they did not have a bank account in Spain and they had left their car behind as it had broken down and they couldn’t repair it; they had returned from Spain in a rented van with their few belongings they could not afford to go bankrupt and had only one bank account, which had no money in it; they were living off the new business which they were trying to get off the ground; and, they had no property of value other than a nine-month old computer.

 

As mentioned above, although Mr T’s complaint appeared to concern solely the material obtained by the HCEAs, he had agreed to be filmed by the programme makers outside the property. This material was not subsequently included in the programme as broadcast, but it was clear from the unedited footage that Mr T was happy to be interviewed on camera by the programme makers in order to explain his version of events and that he spoke freely about matters to do with his financial and personal circumstances during that interview.

 

In particular, Mr T disclosed the following information to the programme makers outside the house: they did not know about the county court judgment until after it had happened; they had just come back from Spain and were trying to get their life back on track; their digital marketing business got into debt and they could not get a bank loan; they could not pay the VAT they owed because they were paying staff wages; they were also unable to pay their mortgage; the company was in trouble following a project which fell apart after several months when the client pulled out and disputed the work they had done; the client who pulled the project was a difficult customer who had been “to-ing and fro-ing” for several months. He wanted his deposit back, but they had already done work to at least the value of the deposit; they were in debt and just could not “survive” so they moved to Spain to reduce their outgoings and to try to keep the business going, but finally they could not do it; they returned because Mrs T was homesick; they were now finally back on track with the house, which was not going to be repossessed, and they were going to start again from scratch and had very little to live off;

 

Mr and Mrs T were working together so they could reduce their outgoings and not have to pay for any staff; and,

 

Mr T had previously had a landscaping business which had also closed down as a result of going into debt.

 

It was evident from the above that Mr T had openly disclosed a large amount of the information relating to his financial and personal circumstances to the programme makers that he had disclosed to the HCEAs inside the house. As Channel 5 pointed out in its representations on the Second Preliminary View, Mr T had disclosed this information in the expectation that it would be broadcast. Channel 5’s representations echoed Ofcom’s view that these factors brought into question the extent to which that information was private and could continue to attract a legitimate expectation of privacy. However, the nature of the material captured by the body cameras inside the house covered a broader range of private information which included Mr T’s initial reactions to the HCEAs as well as footage of him inside his private family home, an environment which he had specifically told the programme makers they were not allowed to enter, and they had expressly agreed not to do so. The filming followed the HCEAs around the house as they discussed the issues with Mr and Mrs T and assessed whether or not there were any items of value in the property. This included filming of the pressurised financial negotiations which took place between the HCEAs and Mr T as they tried to reach an agreement to settle the matter. It also included Mr and Mrs T’s discussion with the HCEAs about Mr T’s 79-year old uncle and whether he might be able to help them. As to the interior of their home, the filming captured several rooms and the contents of their house, including their personal belongings and a poster made by their friends welcoming them home. The filming also recorded the fact that they had little furniture and that their belongings were in disarray and mostly still in removal boxes.

 

Therefore, we considered that while Mr T may have chosen later to disclose their financial and personal circumstances to the programme makers outside the house, it was also important to take into account the wider circumstances of the filming inside the house. This included the private and personal environment in which Mr T was filmed by the HCEAs’ body cameras, the sensitive and personal nature of the information that was captured as well as his reaction to the HCEAs, and the intimate exchanges between him and his wife and uncle.

 

Factors specific to Mrs T

 

From both the unedited and the broadcast footage, we took into account that Mrs T was filmed in her private property discussing her financial and personal circumstances with the HCEAs. In particular, she was filmed as she explained that she and her family did not have the ability to pay the money owed; that she was married; that she and her husband had recently returned from living in Malaga for two years, because they were homesick; and, that they had rented their house in the UK to pay for the mortgage on the property and their rent while they were living in Spain. Also, as in relation to Mr T, we noted that the interior of Mrs T’s home and her personal belongings were filmed as the HCEAs assessed whether or not there were any items of value in the property.

 

We acknowledged that Mrs T was not personally named on the Writ but that she was also a director of the company named on the Writ and had chosen to involve herself in the situation. In any event, we noted that the majority of the conversations were taking place within the confines of Mr and Mrs T’s home and if she was to assist Mr T she would need to discuss matters with him and the HCEAs irrespective of the presence of the cameras. In addition, we recognised that during some of the unedited footage, Mrs T was clearly distressed as she discussed the matters with Mr T and the HCEAs.

 

As above, we took into account that Mr T chose to discuss his and Mrs T’s financial and personal circumstances with the programme makers later outside the house and that this had the effect of limiting the factual information over which Mrs T might retain an expectation of privacy. We also took into account from Mrs T’s conversation with the HCEAs inside the house that some of the information she gave was not mentioned by Mr T in his conversation with the programme makers. For example, she said more about their time in Spain, explaining where they had been living and how long they had been there. She also discussed the size of their mortgage and the fact that no one in their families had any money and told the HCEAs that they had no children and spoke about their four dogs. As in relation to Mr T, we took into account that the body cameras worn by the HCEAs captured footage of Mrs T inside her property and her reactions to and discussions with Mr T and the HCEAs about matters connected with the Writ as the pressurised financial negotiations with the HCEAs took place. Significantly, this included filming Mrs T as she became increasingly upset. It also included filming Mrs T as they discussed involving Mr T’s 79-year old uncle who lived locally and her concerns about doing so.

 

Therefore, while Mr T may have chosen later to disclose their financial and personal circumstances to the programme makers outside the house, it was also important to take into account the wider circumstances of the filming inside the house. This included the private and personal environment in which Mrs T was filmed by the HCEAs’ body cameras and the sensitive and personal nature of her conversations with them, as well as the intimate exchanges between her and her husband and his uncle. Additionally, Mrs T was filmed while she was visibly distressed.

 

Mr and Mrs T’s legitimate expectation of privacy

 

Ofcom took into account Channel 5’s assertion that the execution of a Writ is a public matter, not a private one, and that the execution of the Writ was not a matter connected with the complainants’ private lives, but a public matter. We considered that while the existence of a county court judgment may be considered a matter of public record and may not, therefore, be information in relation to which Mr and Mrs T had a legitimate expectation of privacy, the information captured by the filming of Mr and Mrs T went beyond the fact of the debt and the personal consequences and impact of the enforcement process on them. Ofcom did not agree that the events surrounding the enforcement of a debt were necessarily a matter of public record, or that there can be no legitimate expectation of privacy in relation to those events (and especially not where those events take place within the confines of a private, family home). In this instance and taking account of the information freely disclosed later by Mr T to the programme makers in his conversation with them outside the house, in Ofcom’s view the nature of much of the information contained in the obtained footage was sensitive and constituted an intrusion into Mr and Mrs T’s private and family life. Ofcom considered that this went beyond the information which might otherwise have been in the public domain as a consequence of the court enforcement process.

 

As mentioned previously, the test as to whether a legitimate expectation of privacy arises is objective: it is fact sensitive and must always be judged in light of the circumstances in which the individual concerned finds him or herself10. The location where the filming occurred was one of several factors that was relevant to Ofcom’s consideration of this case. Taking into account all the circumstances in this case, in our view the events involving Mr and Mrs T which the footage captured could reasonably be characterised as highly sensitive to them and plainly came within the scope of “private and family life” and thus engaged Article 8. Therefore, we considered that the situation Mr and Mrs T were in attracted a legitimate expectation of privacy.

 

Given all the factors above, and taking into account the use of surreptitious filming and its consequences, and notwithstanding the Writ and the fact that Mr T had spoken to the programme makers later to explain his version of events, Ofcom considered that the interference with Mr and Mrs T’s privacy which was caused by the obtaining of this material with a view to its being broadcast was significant.

 

Whether the infringement was warranted

 

There was no dispute between the parties that the complainants’ consent was not sought for the filming and subsequent broadcast of the footage included in the programme. Therefore, it was not necessary for Ofcom to consider this point further. We therefore went on to consider whether the infringement of Mr and Mrs T’s legitimate expectation of privacy was warranted on these facts.

 

10 See, for example, Anthony Clarke MR in Murray v Express Newspapers Ltd [2009] CH 481, at para 36: “the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher”.

 

The Code states that “warranted” has a particular meaning. This is that, where broadcasters wish to justify an infringement of privacy, they should be able to demonstrate why, in the particular circumstances of the case, it is warranted. If the reason is that it is in the public interest, then the broadcaster should be able to demonstrate that the public interest outweighs the right to privacy. Examples of public interest could include revealing or detecting crime, protecting public health and safety, exposing misleading claims by individuals or organisations or disclosing incompetence that affects the public.

 

We took into account Channel 5’s argument that there was a public interest in the filming (and subsequent broadcast) of the footage in that it showed the activities of the HCEAs while executing their official duties. We also considered Channel 5’s representations that the enforcement of the debt was a public matter and that there is a clear public interest in seeing the activities of the HCEAs in the course of executing their official duties.

 

Ofcom did not agree with Channel 5’s interpretation of the decision in Ali v Channel 5 in its representations on the second Preliminary View. While the Court did accept that the principle of open justice entitled Channel 5 to report that a county court had made an Order for possession and the High Court had issued the Writ against the claimants, the Judge did not accept that this justified broadcasting the information at issue, which was not a foreseeable consequence of the claimants’ failure to comply with the Order for Possession, or of their eviction. The Judge rejected all of the grounds relied on by Channel 5 to argue that the claimants did not have a “reasonable expectation of privacy”, finding that the claimants had a reasonable expectation of privacy in respect of all the material broadcast. Weighing up the respective ECHR rights of the parties, the Judge decided that the balance came down in favour of the claimants’ Article 8 privacy rights. While he accepted that Channel 5 had editorial discretion in the tone and way it told the story, he did not accept that Channel 5’s editorial discretion extended to the decision to include the private information, unless it was in the public interest to do so. On the facts in Ali the Judge considered that overall the programme did contribute to a debate of general interest, but that the inclusion of the claimants’ private information went beyond what was justified for that purpose. The Judge went on to say that the focus of the programme was upon the drama of the conflict which had been encouraged by the HCEA to make “good television”.

 

Applying the same approach as the Court in Ali, Ofcom accepted that the public interest was engaged in making this programme in that it illustrated the type of interaction HCEAs routinely engage in and the difficulties experienced by people in the position of Mr and Mrs T. Ofcom also accepted that Channel 5 had editorial discretion in the tone and way it told the story and that its editorial discretion extended to the decision to include the private information – but only if the inclusion of the private information at issue was justified in the public interest. Therefore, being satisfied that the complainants had a legitimate expectation of privacy, Ofcom intensely focussed on the weight of the comparative rights under Articles 8 and 10 that are in issue in order to decide where the balance lies in these particular circumstances. On the facts of this case, we considered that the interference with Mr and Mrs T’s rights to privacy was particularly serious, particularly in light of the manner in which the footage was obtained within the family home, and the sensitive and intimate matters which were recorded about their private and family life. While we recognised that Mr T’s debt related to his business, that the Writ was in both his company’s name and his own name and that he had openly spoke about the matters raised in conversation with the HCEAs inside his home, we considered that the level of interference with Mr and Mrs T’s legitimate expectation of privacy was significant. We recognise that there is a public interest in the work of the HCEAs. However, in Ofcom’s view, Mr and Mrs T’s legitimate expectation of privacy was of such a nature and gravity as to outweigh the public interest in programming of this nature and the wider Article 10 rights of the broadcaster and programme maker.

 

Ofcom also considered whether, in accordance with Practice 8.9, the material had been obtained proportionately in all the circumstances. The footage was obtained while the programme makers accompanied the HCEAs in carrying out their duties. The filming by the camera crew appeared to be open and unobtrusive and took place outside Mr and Mrs T’s home. However, as set out already above in relation to Practice 8.13, we considered that the manner in which the footage inside her home was obtained was surreptitious. In Ofcom’s view, the use of surreptitious filming in this instance was not warranted, particularly as it took place in a private home and therefore allowed the programme makers unfettered access to intimate family interactions. As mentioned above, although the fact of the enforcement of a Writ may be a matter of public record, it does not follow that its consequences and impact for a debtor are also necessarily public matters in respect of which no legitimate expectation of privacy arises. Nor does it follow that intrusive footage capturing the debtor’s reaction and intimate exchanges between the debtor and their family in a family home is justified by the public interest in learning about the HCEAs’ work and the enforcement process. While we took into account Channel 5’s representations on this point, Ofcom considered that the means of obtaining the material had not, in all the circumstances, been proportionate for the purpose of Practice 8.9.

 

Having taken all the above factors into account, including Channel 5’s representations on the second Preliminary View, Ofcom considered that, on balance, the broadcaster’s right to freedom of expression and the public interest in obtaining the footage of Mr and Mrs T in this instance did not outweigh their legitimate expectation of privacy in relation to the filming of them or justify the significant intrusion which the obtaining of the footage caused to their rights in this regard. Therefore, we considered that Mr and Mrs T’s privacy in connection with the obtaining of material included in the programme and the use of surreptitious filming was unwarrantably infringed.

 

b) Ofcom next considered Mr and Mrs T’s complaint that their privacy was unwarrantably infringed in the programme as broadcast. We had regard to Practice 8.6 of the Code which states that if the broadcast of a programme would infringe the privacy of a person, consent should be obtained before the relevant material is broadcast, unless the infringement of privacy is warranted.

[Bailiff Advice]

Decision continued:

 

Mr and Mrs T’s legitimate expectation of privacy

 

We assessed whether Mr and Mrs T had a legitimate expectation of privacy regarding the broadcast of footage of them included in the programme. We applied the same objective test as set out in head a) above.

 

As set out in the “Programme summary” above, we took account of what material was shown in the programme. In particular, Mr and Mrs T were shown not only discussing their financial situation with the HCEAs, but also candidly expressing their feelings about how they got into debt, their move and subsequent return from Spain, and asking Mr T’s uncle for the money to pay off their debt. At one point, as they spoke about their situation, Mrs T was shown visibly distressed. Mr T’s face was not obscured in the programme, though Mrs T’s was. However, neither Mr and Mrs T’s voices were obscured or disguised in the programme and Mr T was referred by name, therefore rendering him and his wife identifiable in the programme.

 

Practice 8.14 states that “Material gained by surreptitious filming and recording should only be broadcast when it is warranted”. As explained in detail at head a) above, Ofcom considered that the footage filmed of Mr and Mrs T had been obtained surreptitiously.

 

For the reasons set out in head a) above, Ofcom considered that the footage in question was highly sensitive and private in nature. We also considered that the intrusion was particularly acute as a result of the subsequent disclosure of that footage in a nationally televised programme (with attendant exposure that substantially exceeded anything which someone in Mr and Mrs T’s position could possibly have expected at the time)11. In these circumstances, we considered that the inclusion of this material in the programme as broadcast constituted a significant interference with Mr and Mrs T’s privacy rights.

 

Whether the infringement was warranted

 

It was not disputed by the broadcaster that the footage was included without Mr and Mrs T’s consent. We therefore went on to consider whether the broadcast of this material was warranted under the Code.

 

We again carefully balanced Mr and Mrs T’s right to privacy regarding the inclusion of the relevant footage in the programme with the broadcaster’s right to freedom of expression and the audience’s right to receive the information broadcast without unnecessary interference. We took into account the information Mr T openly chose to disclose later to the programme makers in the knowledge that it could eventually be broadcast. We nevertheless considered that the programme involved a significant intrusion into Mr and Mrs T’s legitimate expectation of privacy, which went substantially beyond the fact of the outstanding debt itself as a consequence of including their unguarded disclosures within the confines of the domestic home, the interior of that home, and how they lived and interacted with others in that environment, including the HCEAs and Mr T’s uncle. Additionally, the material broadcast included footage of Mrs T while she was distressed and crying.

 

As above in head a) we took into account Channel 5’s argument and its representations that there was a public interest in broadcasting the footage in that it showed the activities of the HCEAs while executing their official duties. We also took into account the broadcaster’s representations on the second Preliminary View, as also set out above in head a).

 

We acknowledged that the public interest was engaged in broadcasting programmes that highlight the serious issue of debt and the issues which the HCEAs encounter when seeking to enforce court orders made in that regard. We also recognised that the inclusion of named or identifiable individuals may enhance that public interest by making the broadcast footage more accessible or engaging to the watching audience12. However, in weighing up the competing rights of the parties, Ofcom took particular account of the serious nature of the interference with Mr and Mrs T’s rights to privacy, particularly in light of the manner in which the footage was obtained within the family home, and the sensitive and intimate matters which were recorded about their private and family life. Ofcom considered that Mr and Mrs T’s legitimate expectation of privacy, together with the fact that they did not give their consent to the broadcast of this material and that it was obtained by means that, in Ofcom’s view, amounted to surreptitious filming, were significant factors in weighing up the competing rights of the parties.

 

Having taken all the factors above into account, Ofcom considered that, on balance, the interference with Mr and Mrs T’s rights to privacy in this case was significant and of such a nature and gravity as to outweigh the public interest in programming of this nature and the wider Article 10 rights of the broadcaster and programme makers. Ofcom also took the view that the broadcast of the footage of Mr and Mrs T gained by the surreptitious filming was not warranted for the purpose of Practice 8.14 in these circumstances. For these reasons, Ofcom considered that the complainants’ privacy was unwarrantably infringed in the programme as broadcast.

 

 

 

Ofcom has upheld Mr T’s complaint made on his own behalf and on behalf his wife, Mrs T, of unwarranted infringement of privacy in connection with the obtaining of material included in the programme, and in the programme as broadcast.

[HCEOs]

It must be remembered by the judgment debtors that the actions of the HCEAs in this matter are legally attributable to the authorised HCEO, in this case Claire Louise Sandbrook (also of Shergroup) who currently resides in USA.

 

It would be prudent for them to make a complaint to the HCEOA regarding the clear lack of control of Writs issued in her name, no doubt citing residence in the USA as a contributing factor not to mention the considerable revenue 'kick back' she receives from DCBL.

[Bailiff Advice]

I notice too that the decision is based upon an episode that had been broadcast over two years ago (May 2016). I have little doubt that there will be more decisions on a similar basis.

 

In light of the Ali judgment, I have to say that I am very surprised at the lengthy representation given by Channel 5.

[brassnecked]

It must be remembered by the judgment debtors that the actions of the HCEAs in this matter are legally attributable to the authorised HCEO, in this case Claire Louise Sandbrook (also of Shergroup) who currently resides in USA.

 

It would be prudent for them to make a complaint to the HCEOA regarding the clear lack of control of Writs issued in her name, no doubt citing residence in the USA as a contributing factor not to mention the considerable revenue 'kick back' she receives from DCBL.

Nice if Sandbrook and DCBL fall foul of GDPR, won't help her being in the USA.

[silverfox1961]

I notice too that the decision is based upon an episode that had been broadcast over two years ago (May 2016). I have little doubt that there will be more decisions on a similar basis.

 

In light of the Ali judgment, I have to say that I am very surprised at the lengthy representation given by Channel 5.

 

 

As with the previous case involving body worn cameras, Channel 5 tried all ways to get around it and the same applies in this case. They must have hoped that by providing a lengthy response, they would baffle OFCOM. They were having none of that.

 

 

What I would like to see OFCOM doing now is to go back and examine all the 'not upheld' cases and find out whether the BWC were the property of DCBL or the program makers. I wouldn't be at all surprised if more similar cases came to light. I may just ask OFCOM that question.

[DragonFly1967]

I can see a long future in court for DCBL, Channel 5, Brinkworth Films and many, many claimants