Freedom of Expression
Undercover filming by BBC protected by Article 10
A care home operator applied for an injunction to restrain the broadcast of a documentary produced by the BBC filmed covertly by an undercover reporter. The BBC stated aim was to document ineffectiveness in the regulation of care homes and it asserted that its programme identified a number of failings at the home. The care home operator argued the filming infringed the rights to privacy and family life of the care home residents (Article 8 ECHR - European Court of Human Rights). The High Court's reasoning was a fine balancing act between the reasonable expectation of privacy of the residents and the clear public interest in care home standards and the BBC's conflicting rights to freedom of expression. The Court refused the injunction and permitted the programme to be aired; whilst residents' rights could potentially be seriously infringed by secret filming, the BBC had minimised that risk by undertaking to obscure the identity of the residents in the broadcast, and its rights to freedom of expression (Article 10 ECHR) were, on balance, stronger and overriding.
To view the judgment from the bailii website, please click on the link below:
BKM Limited v BBC [2009] EWHC 3151 (Ch) 2 December 2009
Norwich forcing FT to disclose source breached ECHR
The European Court of Human Rights (ECHR) has ruled that a disclosure order in the proceedings Interbrew SA v Financial Times Ltd in the English High Court in 2002 infringed the FT's right of freedom of expression (Article 10 ECHR). The FT amongst other newspapers were ordered in 2002 to disclose information and documentation relating to a market sensitive document prepared by Goldman Sachs, which they had received from an anonymous source and which related to the takeover by Interbrew of SAB. The Court of Appeal rejected the FT's appeal and the House of Lords refused leave to appeal. Neither the FT nor any other paper complied with the disclosure order and Interbrew did not pursue any enforcement proceedings against any paper. The FT and other papers took the case to the European Court which agreed that the disclosure order was a breach of the FT's rights under Article 10 of ECHR. A critical fact influencing the European Court was that although Interbrew had been aware of the impending publication by the newspapers before it had occurred it had not sought an injunction to prevent it. Further, the ECHR considered that a disclosure order would only be justified in exceptional circumstances where there was no reasonable and less draconian alternative available to discover the source of the leak. The ECHR ruled that the protection of journalistic sources outweighed any threat of damage to Interbrew by the possible future publication of confidential information and the disclosure order was therefore unjustified in these circumstances.
To view the judgment from the bailii website, please click on the link below:
Financial Times Ltd and Others v United Kingdom, (Application No 821/03), 15 December 2009
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