Judgment Approved by the court for handing down.
Ali & Aslam v Channel 5 Broadcasting Ltd
beyond “the ambit of conclusions which the judge could reasonably reach” and
erroneously substituted “his own views on editorial matters, intruding on the proper
area for the exercise of editorial discretion”. Mr White submitted that the judge fell
into reliance on two fallacies. Firstly, that making a contribution to a debate of
general interest might be determinative of how the balance should be struck between
Articles 8 and 10. Although he conceded that this remains one of the criteria which
the court must consider, the question could no longer be determinative: see Weller v
Associated Newspapers Ltd paragraph 72. The second fallacy, said Mr White, was to
conclude that a proper exercise of editorial discretion cannot permit an invasion of
privacy. On the contrary, in striking the balance between privacy and public interest,
considerable latitude had to be accorded to editorial discretion and here Mr White
relied on the well-known dictum of Lord Hoffmann in Campbell v MGN Ltd at
paragraphs 61 and 62:
“61. That brings me to what seems to be the only point of
principle which arises in this case. Where the main substance of
the story is conceded to have been justified, should the
newspaper be held liable whenever the judge considers that it
was not necessary to have published some of the personal
information? Or should the newspaper be allowed some margin
of choice in the way it chooses to present the story?
62. In my opinion, it would be inconsistent with the approach
which has been taken by the courts in a number of recent
landmark cases for a newspaper to be held strictly liable for
exceeding what a judge considers to have been necessary. The
practical exigencies of journalism demand that some latitude
must be given. Editorial decisions have to be made quickly and
with less information than is available to a court which
afterwards reviews the matter at leisure.”
69.
The Defendant relies on the principles laid down in Axel Springer AG v Germany, as
conveniently digested in Richard v The British Broadcasting Corporation [2018]
EWHC 1837 (Ch) at paragraphs 267-278. Although general public interest may not
be a trump card, it is still of importance in reaching the correct balance. The judge
was wrong, in his conclusion in paragraph 206, to rule out the capacity of editorial
discretion in favour of the inclusion of private information unless “that information”
was justified as contributing to a debate of general interest. That was too narrow an
approach. If the matter is of general public interest overall, then editorial discretion
must be accorded sufficient room to include private information in order to make the
article or programme of interest to the public. As Mr White put it, it is in the public
interest “to see what it all means”.
70.
The second discursive ground of cross-appeal related to what the Defendant describes
as “three further inter-related errors”. The Defendant criticises the judge for failing to
take into account the unchallenged evidence from Mr Brinkworth, explaining why the
conflict between Omar Ahmed and the Claimants was included in the programme.
Mr Brinkworth had been accepted by the judge as a “straightforward witness”, and Mr
Brinkworth was the person with overall editorial responsibility. At paragraphs 13 and
17 of his witness statement, Mr Brinkworth emphasised how the “heated interactions”
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