Ofcom upholds complaints of privacy infringement in relation to Channel 5 documentary

Ofcom has upheld two separate complaints of unwarranted infringement of privacy in relation to the Channel 5 documentary ‘Inside the Gang’, one of which involved a minor.

Business impact

Broadcasters should be aware that a person’s right to privacy can still be engaged even where they may not be identifiable to the wider public (for example by blurring their face), since the person might still be identifiable to those who know them.

If footage is already in the public domain, for example if it is on social media, that does not mean that a person is deprived of their right to privacy in connection with a broadcast of that footage, especially if it is unlikely that the individual would have consented to its circulation via social media.

Overview

‘Inside the Gang’ is a Channel 5 investigative documentary looking at gang culture in the UK. In the first complaint, Ms C complained that her son’s privacy was unwarrantably infringed in the programme since it included mobile phone footage (which had been placed on YouTube) of her son being forced to apologise to his cell mate and rival gang member whilst semi-naked and after he had been “nearly killed” by another inmate. The footage was used without her son’s consent and showed her son in a very distressed state.  Further, she claimed that even though her son’s face had been blurred, her son was identifiable from the footage since his voice has not been disguised.

In the second complaint, Ms G complained on behalf of her nephew, that his privacy was unwarrantably infringed in the programme since it included footage of her nephew, then 14, being asked to strip naked and then physically abused.  The footage was shown without her nephew’s consent and she argued that, since it had been previously shown on social media, her nephew would have been identifiable in the programme even though his face had been blurred.  Ms G stated that the footage showed her nephew in a state of emotional distress and the broadcast of the footage caused him further severe emotional distress.  Ms G stated that. although her nephew’s attackers were in prison for the incident, her nephew feared for his safety since the broadcast of the footage could encourage other gang members to attack him.

In both complaints, Ofcom considered that it was unlikely that either subject would have consented to the respective footage being shared on social media in the first instance.  In any event, Ofcom stated that individuals are not necessarily deprived of their right to privacy if information, in respect of which they claim that right, has been put into the public domain in the past.  Despite steps taken by Channel 5 to obscure the subject’s identities, they were both identifiable to people who already knew them.  Ofcom considered, in both instances, that although the subject-matter of the programme (gang activity) was of genuine public interest, the interference with the subjects’ legitimate expectation of privacy was significant, particularly when having regard to the fact that the footage of the two subjects was of an extremely sensitive nature.

Summary

Broadcasters should be alive to the fact that, although broadcasters have editorial discretion, programmes that carry a genuine public interest must not be made at the expense of individuals’ right to privacy, and must be made in accordance with the Broadcasting Code rules.

Complaints ‘Ms C on behalf of Mr D’ and ‘Ms G on behalf of Mr H’, published in Issue 350 of the Broadcast and On Demand Bulletin (19 March 2018).

 

Astrid Bulmer, Trainee Solicitor, Simkins LLP