By Emma Norton
"I'd like to know about the legal issues surrounding privacy and the filming and broadcasting of all those "cops"-style documentaries that follow the police or the border agency people etc around. Often on these programs the individual being accosted by the authorities is less than happy to be filmed. To be honest I'm not surprised as to have cameras shoved in your face at moments like these seems to me to be provocative to say the least (even if the individual in question is acting like a complete idiot). So my question is, what 'privacy' rights do you have with regards to being filmed in these kind of situations? What laws do the camera crews have to abide by?"The legal and human issues raised by camera crews filming alongside police officers trying to stop and question individuals in public places was addressed by my colleague Corinna in December 2009 and that piece should answer a lot of Petrichor's questions.
However, Petrichor has raised a new point, which is something of real concern to many people: the apparent presence of film crews inside immigration detention centres and interview rooms where people are being interviewed by UK Border Agency (UKBA) staff.
I have come across some of these programmes while channel surfing. There is a particular programme, put out regularly on one very well-known private television network, that follows the activities of UKBA staff as they attend people at home to arrest them on suspicion of immigration offences, film them during immigration interviews, film them in their immigration detention centres and follow them as they are put on the plane. In the vast majority of cases, it seems, the face of the person being interviewed or arrested is not pixellated.
I have seen people being filmed as UKBA staff force their way into their flat, while the person is still in their underwear. The camera zooms in on the subject's face as he is being asked questions by the immigration officer. Another film follows a UKBA crew as they go to a detention centre to pick up a group of young men, who are then taken to the airport to be deported. There are what are clearly first interviews with people who are being closely questioned about their families, their work plans and their domestic arrangements.
Allegations are put to people that seem to be untested and unproven, which are then broadcast.
The culture of disbelief at UKBA is palpable in the faces of many of the UKBA staff asking questions of the detainees. There is a real worry, as my colleague mentioned in her article, that staff may be playing up to the cameras. At no point in any of the films I have seen has the subject been asked to give his or her consent to being filmed. Even if consent had been technically given, in such a stressful situation, we have concerns about how meaningful that consent could be.
I was also shocked to read of a report from May 2008 in the press that the Home Office had at least in part funded the setting up of this series. It was reported that the former government had made a so-called "advertiser-funded" deal with the TV company concerned, which would help the company meet the costs of developing and making the programme. The decision by the then government to contribute to the setting up of such a series was very heavily criticised as blatant propaganda, something which, if true, we would second.
So what is the position, legally? The first thing to acknowledge is that if an individual consents to having his/her face and personal details broadcast as part of the film, then of course it can go ahead. The production company may have obtained the consent of the subjects of the film, after filming them but before broadcasting.
It would be interesting to hear from the production company concerned about how they deal with the matter of consent. We do wonder why someone would agree to give their consent to have their personal details and pictures broadcast on national television in a very unsympathetic way, when they would appear to have no incentive at all to do so. The consequences of giving consent are an enormous invasion of privacy and the almost inevitable prejudicing of any future application to come to the UK. Are the production company paying the subjects for their consent? If so, would this be ethical?
If consent is not given by the subject of the film, then the person clearly has a reasonable expectation of privacy, which is breached by the filming of them in a private place and in such stressful circumstances. The subject has a right to privacy under article 8 Human Rights Act, which is engaged by filming them and broadcasting that film. The fact that the broadcaster/TV company is not a public authority does not mean that it is not bound to respect article 8, as the case of Campbell v MGN Limited made very clear – the law of confidence in this country has effectively incorporated the provisions of article 8 so that "the values embodied in articles 8 and 10 are as much applicable in disputes between individuals or between an individual and a non-governmental body such as a newspaper as they are in disputes between individuals and a public authority". If there was no consent and the broadcast went ahead in such circumstances, we would say that the production company or broadcaster might well be liable under the law of confidence and the UKBA/Home Office under the Human Rights Act.
UKBA might argue that the interference with the person's article 8 privacy rights was justified. Article 8 states that it is lawful to interfere with a person's privacy where the interference is "in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." We do not think that a court would be likely to find that this sort of interference was justified. The broadcasting of these interviews and deportations is not about public education – it is about entertainment.
The TV production company/broadcaster has a conflicting right: the right to freedom of expression (article 10 Human Rights Act). Given that the subject pertains to a matter of concern to the public (illegal immigration), considerable weight will need to be given to this right. Article 10 recognises the importance of freedom of expression, but it also recognises that there are occasions when protection of the rights of others may make it necessary for freedom of expression to give way.
We would say that where the programme contains highly confidential personal information about easily identifiable individuals, then this should carry very serious weight indeed. These programmes have been criticised as being inflammatory, unhelpful and preying on people's worst fears. Certainly they do not encourage the public to think about immigration in a balanced or informed way. We do not think the programme makers (or the Home Office, which apparently supports or has supported them) have got the balance right.