Balancing Exercise Needed for Competing HRA Arguments


An application for an interim injunction concerning a BBC television programme about a care home in Wales was argued on the basis that the broadcast would infringe the residents’ human rights. An undercover reporter had gained employment within the care home for a week and had undertaken covert filming. The subsequent television programme sought to expose failings in numerous ways: inadequate staffing and supervision levels; inappropriate methods of lifting patients; hygiene issues and the fact that the undercover reporter’s references were not checked. Although the BBC invited the directors of the care home to comment on the findings, they were not shown the film footage and neither was the court.
The company that owned the care home brought the action on the basis that it wished to protect the human rights of the residents by virtue of their right to respect for private and family life under Article 8 of the Human Rights Act (HRA). This argument was supported by a number of residents’ relatives who complained about the intrusion. The judge noted that it could be construed that there were also commercial interests at play as regards the care home’s own reputation.
The main argument put forward on behalf of the BBC was also on the basis of the HRA. The broadcaster relied on the Article 10 right to freedom of expression and also stated that individual residents in the film could not be identified. The decision to film covertly fell within BBC guidelines. The BBC also relied on section 12(3) of the HRA, which states that publication will not be restrained unless the court is persuaded that the party seeking the application will establish that publication will not be allowed.
There had to be a balancing exercise between the two competing human rights arguments. The judge said, “The real issue between the parties is whether the resort to clandestine filming was justified in the first place, and whether broadcasting its fruits is justified now.” In refusing to grant the injunction, the judge made it clear that the BBC would have to consider carefully the inclusion of the undercover filming in the forthcoming broadcast.
The full judgment can be found here.

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