Judgment Approved by the court for handing down.
Ali & Aslam v Channel 5 Broadcasting Ltd
complain. The justification relied upon by Channel 5 for
interfering with the Claimants' Article 8 rights is that the
Programme contributed to a debate of general interest. As I
have explained, I accept that the Programme did contribute to a
debate of general interest, but I consider the inclusion of the
Claimants' private information went beyond what was justified
for that purpose. The focus of the Programme was not upon the
matters of public interest, but upon the drama of the conflict
between Omar Ahmed and the Claimants, a conflict which had
been encouraged by Mr Bohill to make "good television".
Although I have not concluded that the Programme was
materially unfair or inaccurate in its presentation of what
happened, that does not assist Channel 5. The justification
relied upon by the Claimants for restricting Channel 5's Article
10 rights is their right to respect for their private and family life
and their home. Notwithstanding the importance of freedom of
expression, I consider that the restriction is justified and
proportionate in the circumstances of this case. Accordingly, in
my judgment the balance comes down in favour of protecting
the Claimants' Article 8 rights.”
66.
We address the question of damages later in this judgment.
The Cross-Appeal
67.
In opening the cross-appeal for the Defendant, Mr White began with concessions. He
does not challenge the finding that the Claimants had a reasonable expectation of
privacy in the information complained of. Further, Mr White accepts the principle
that the trial judge’s conclusion in relation to the balancing exercise between the
Claimants’ privacy rights under Article 8 and the Defendant’s Article 10 rights is to
be treated as analogous to the exercise of the judicial discretion. As the matter was
put in the judgment of the court in Lord Browne v Associated Newspapers Ltd [2008]
QB 103 at paragraph 45:
“45. The approach which should be adopted on an appeal of
this kind is not, we think, in dispute. Although the exercise
upon which the judge was engaged was not the exercise of a
discretion it was similar in that it involved carrying out a
balancing exercise upon which different judges could properly
reach different conclusions. In these circumstances it is now
well settled that an appellate court should not interfere unless
the judge has erred in principle or reached a conclusion which
was plainly wrong or, put another way, was outside the ambit
of conclusions which a judge could reasonably reach.”
68.
However, the Defendant says that in carrying out the balancing exercise, the judge did
go beyond what was justified and made an error of law. The Grounds of Appeal are
expressed discursively. At the core of Ground 1 is the proposition that in concluding
the “focus” of the programme was not on the matters of public interest but on the
drama of the conflict between Omar Ahmed and the Claimants, the judge went
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents