Judgment Approved by the court for handing down.
44.
Ali & Aslam v Channel 5 Broadcasting Ltd
The judge expressed his overall assessment of the Claimants’ expectation of privacy
and the effect of the broadcast in the following terms:
“169. In my judgment the principal factors relied upon by the
Claimants do lead to the conclusion that they had a reasonable
expectation of privacy in respect of the information in question.
The Programme was largely filmed in their home; it showed
them being evicted without prior warning; it showed them in a
state of shock and distress; it showed them being taunted by
Omar Ahmed; and it was foreseeable that the broadcasting of
the Programme would have an adverse effect on their children.
I do not accept that the open justice principle means that the
Claimants' Article 8 rights were not engaged. Open justice
means that Channel 5 was entitled to report the facts that the
courts had made the Order for Possession and issued the Writ
of Possession and in consequence the Claimants had been
lawfully evicted; but what happened in their home on 2 April
2015 was not part of the proceedings. Nor do I consider that the
broadcasting of the information was an inevitable consequence
of the Claimants' failure to comply with the Order for
Possession. Nor do I accept that Mr Ali's Article 8 rights were
significantly weakened by his political activity. Mrs Aslam had
not engaged in political activity at all. I accept that the
Claimants, and their children, had already suffered damage to
their privacy as a result of the Ahmeds' postings on social
media, but I do not accept that this meant that the broadcasting
of Programme either could not or did not inflict further damage
given the substantial scale and duration of the broadcasting.”
45.
The judge also concluded that the filming taking place in the street could not be
meaningfully divorced from that which was filmed inside the property as they formed
a “single sequence of events”. Hence the judge concluded that the Claimants did
indeed have a “reasonable expectation of privacy” in respect of those events.
46.
The judge went on to consider whether the Claimants consented to the broadcast. The
Defendant contended that Mr Ali had indeed consented to the broadcasting of the
programme, or at least to much of the key information in the programme, by agreeing
to be interviewed at 9:31am. It was said that Mrs Aslam “did not dissociate herself”
from this. The Defendant had contended that this constituted a waiver by the
Claimants of their right to privacy, treating it as an aspect of issue of reasonable
expectation of privacy, but the judge addressed the issue separately. He began by
considering what had not happened. When Mr Bohill entered the property and he
explained to Mr Ali who he and his colleague Mr Shore were, he did not explain who
the film crew were or why they were present. At no point did anyone explain to the
Claimants this was a programme for Channel 5, although that had been explained to
the Ahmeds and to the police officers. The film crew did not follow the instructions
given in BFL’s “production bible”, which was in evidence in the case. Mr Rae had
made an attempt to do so at 8:29, but that was cut across by Mr Bohill. Nor were the
Claimants informed that the two HCEAs “were effectively filming for the programme
with their body cameras”: paragraph 172.
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