Response Handling Ltd v. British Broadcasting Corporation (BBC) [2007] ScotCS CSOH

"12(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to -

(a) the extent to which -

(ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code."

Authoritative guidance on the meaning and application of section 12(3) is to be found in the decision of the House of Lords in Cream Holdings Limited v Banerjee [2005] 1 AC 253. In that case Lord Nicholls of Birkenhead considered the meaning of the word "likely" in section 12(3). In paragraph 22 Lord Nicholls summarised the position as follows:

"Rather, on its proper construction, the effect of section 12(3) is that the court is not to make an interim restraint order unless satisfied the applicant's prospects of success at the trial are sufficiently favourable to justify such an order being made in the particular circumstances of the case. As to what degree of likelihood makes the prospect of success 'sufficiently favourable', the general approach should be that courts will be exceedingly slow to make interim restraint orders where the applicant has not satisfied the court he will probably ('more likely than not') succeed at the trial. In general, that should be the threshold an applicant must cross before the court embarks on exercising its discretion, duly taking into account the relevant jurisprudence on article 10 and any countervailing Convention rights. But there will be cases where it is necessary for a court to depart from this general approach and a lesser degree of likelihood will suffice as a prerequisite. Circumstances where this may be so include those mentioned above: where the potential adverse consequences of disclosure are particularly grave or where a short-lived injunction is needed to enable the court to hear and give proper consideration to an application for interim relief pending a trial or any relevant appeal."

This test was applied in Scotland by Temporary Judge M G Thompson QC in X v British Broadcasting Corporation 2005 SLT 796. I gratefully adopt his approach. I propose to review the issues which arise in the case and consider whether the pursuers are more likely than not to succeed at proof or, whether, failing that, there are circumstances here in which it would be appropriate to apply the lesser standard. If the pursuers pass the section 12(3) test it will be necessary to decide whether I should exercise my discretion to grant interim interdict. I begin by considering freedom of expression and the public interest in the material being broadcast.

Freedom of Expression: Article 10
[11] The BBC rely on their right to freedom of expression under Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). Article 10 provides:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

[12] Freedom of expression is an important aspect of a democratic society. As has been recognised in the past broadcasters, such as the BBC, fulfil a vital function in informing the public of matters of genuine interest. Part of the function is to act as a "watchdog" and inform the public on matters of interest and concern. In that regard investigative journalism has a particular role. However, the freedom is not without limits and there may be interference in its exercise where that interference falls within the requirements of paragraph 2 of Article 10.

[13] Where a broadcaster such as the BBC insists on their right to freedom of expression it will be necessary for the court, where there are competing considerations, to carry out a balancing exercise putting in the scales on one side the public interest in broadcasting and on the other competing interests such as the right of the pursuers to protect confidential information (see Imutran Limited v Uncaged Campaigns Limited [2001] 2 All ER 385 at paragraph 20 and Lion Laboratories v Evans (infra)). I was also referred to the approach where there are competing Convention rights, and in particular to the speech of Lord Steyn in In re S (A Child) [2005] 1 AC 593 at paragraphs 15-17. The pursuers did not seek to rely on any rights under Article 8 of the Convention but did seek to rely on their right to privacy their intellectual property under Article 1 of the First Protocol to the Convention.

[14] In the course of the discussion it seemed to me that a possible pragmatic way of resolving the case would be for the BBC to publish the information obtained by the undercover activities but not to name the pursuers. The BBC declined to take that course for various reasons. They prefer to rely on the principle of freedom of expression to publish all the details of the story and submit that it is for the pursuers to demonstrate a legal basis why the BBC cannot tell the whole story. The pursuers found on a breach of confidentiality. The essence of the case against the BBC is that the broadcast contains information obtained in breach of confidentiality. If the pursuers are not named they would have no basis to sue the BBC. The BBC recognizes that by naming the pursuers they put in issue the conflict between the competing rights which must be resolved by the court. In my opinion the BBC are entitled to take this approach and that there would be no relevant basis to proceed on the amended conclusion by limiting the interdict to preventing identification of the pursuers and their premises.

The public interest in broadcast of the material collected by Miss Gill
[15] The purpose of the documentary is to explore bank account and credit card fraud which, on any view, constitutes a major criminal activity at the present time. The impact of this type of crime on the national economy is very significant. I was advised that bank account and credit card fraud costs many millions of pounds to the United Kingdom economy every year. The investigation of bank account and credit card fraud by a broadcaster such as the BBC is a matter of genuine public interest and concern. It appears that one route by which organised criminals may gain the necessary information to carry out fraud is by accessing information held in the computers of call centres. The records held by call centres are valuable sources of such information. One way in which access may be gained is by a criminal obtaining a job in a call centre. The extent to which call centres establish and operate security systems and procedures for vetting employees are matters for legitimate public interest. Improvements to such systems are of benefit to the public and the operators of call centres. Most members of the public have bank accounts and credit cards. Most will from time to time have contact with call centres. There is therefore considerable public interest in the broadcast of material such as that obtained by Miss Gill operating undercover.

The Relevant Code
[16] The relevant code for the purpose of section 12(4) of the 1998 Act is the Code prepared by the Broadcasting Standards Commission in fulfilment of its statutory duty under the Broadcasting Act 1996 and now promulgated by Ofcom, its successor under the Communications Act 2003 ("the Code"). The principle stated by Section 7 of the Code is as follows:

"To ensure that broadcasters avoid unjust or unfair treatment of individuals or organisations in programmes."

Section 7.14, so far as material, stipulates:

"Broadcasters or programme makers should not normally obtain or seek information, audio, pictures or an agreement to contribute through misrepresentation or deception. (Deception includes surreptitious filming or recording.) However:

· it may be warranted to use material obtained through misrepresentation or deception without consent if it is in the public interest and cannot reasonably be obtained by other means.

· if the individual and/or organisation is/are not identifiable in the programme then consent for broadcast will not be required."

Section 8 deals with privacy and states as its principle:

"To ensure that broadcasters avoid any unwarranted infringement of privacy in programmes and in connection with obtaining material included in programmes."

Section 8.13 stipulates:

"Surreptitious filming or recording should only be used where it is warranted. Normally, it will only be warranted if:

· There is prima facie evidence of a story in the public interest; and

· There are reasonable grounds to suspect that further material evidence could be obtained; and

· It is necessary to the credibility and authenticity of the programme."

I note that the Code does contemplate circumstances in which it will be warranted to use deception and surreptitious filming.

[17] In Regina v Broadcasting Standards Commission, ex parte British Broadcasting Corporation [2001] 1QB 885 programme makers for the BBC had secretly filmed transactions in a shop as part of an investigation for a consumer affairs programme into the selling of second-hand goods as new. The proprietors of the shop complained to the Broadcasting Standards Commission, although in the event the material was not broadcast. At paragraph 33 Lord Woolf MR said this:

"While the intrusions into the privacy of an individual which are possible are no doubt more extensive than the infringements of privacy which are possible in the case of a company, a company does have activities of a private nature which need protection from unwarranted intrusion. It would be a departure from proper standards if, for example, the BBC, without any justification, attempted to listen clandestinely to the activities of a board meeting. The same would be true of secret filming of the board meeting. The individual members of the board would no doubt have grounds for complaint, but so would the board and thus the company as a whole. The company has correspondence which it could justifiably regard as private and the broadcasting of the contents of that correspondence would be an intrusion of its privacy. It could not possibly be said that to hold such actions of intrusions of privacy conflicts with the Convention."

I note the qualification "without any justification" added to the example. I conclude that the Code leaves open the possibility that a broadcaster may in appropriate circumstances obtain and use material by deception including surreptitious filming.

Confidentiality of the pursuers' information
[18] I am satisfied that a corporate entity such as the pursuers do have a right to privacy (Hoechst AG v Commission of the European Communities [1989] ECR 2859, ECJ and Regina v Broadcasting Standards Commission, ex parte British Broadcasting Corporation (supra).

[19] I am satisfied that the pursuers have a right under Article 1 of the First Protocol to the Convention to the peaceful enjoyment of their possessions. In particular that right to enjoyment of their property would include intellectual property such as their work systems, procedures and employment protocols. It was not argued before me that the pursuers had rights under Article 8 of the Convention.

[20] The pursuers have a right to preserve their confidential information and to privacy. They have a Convention right to enjoyment of their intellectual property. The pursuers are entitled to expect employees to abide by their contracts. They have a right to expect employees not to disclose confidential information. Where there is a conflict between the right of one party such as the pursuers to confidentiality and the right to freedom of expression of another such as the BBC the court will require to carry out the balancing exercise outlined above. I was referred in another context to the following passage in Lion Laboratories v Evans [1985] QB 526 where Stephenson LJ explained the way in which the court will approach the conflict between the competing interests:

"The problem before the judge and before this court is how best to resolve, before trial, a conflict of two competing public interests. The first public interest is the preservation of the right of organisations, as of individuals, to keep secret confidential information. The courts will restrain breaches of confidence, and breaches of copyright, unless there is just cause or excuse for breaking confidence or infringing copyright. The just cause or excuse with which this case is concerned is the public interest in admittedly confidential information. There is confidential information which the public may have a right to receive and others, in particular the press, now extended to the media, may have a right and even a duty to publish, even if the information has been unlawfully obtained in flagrant breach of confidence and irrespective of the motive of the informer. The duty of confidence, the public interest in maintaining it, is a restriction on the freedom of the press which is recognised by our law, as well as by article 10(2) of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd. 8969); the duty to publish, the countervailing interest of the public in being kept informed of matters which are of real public concern, is an inroad on the privacy of confidential matters. So much is settled by decisions of this court, and in particular by the illuminating judgments of Lord Denning M.R. in Initial Services Ltd v Putterill [1969] 1 QB 396; Fraser v Evans [1969] 1 QB 349; Hubbard v Vosper [1972] 2 QB 84; Woodward v Hutchins [1977] 1 WLR 760; and per Lord Denning MR (dissenting) in Schering Chemicals Ltd v Falkman Ltd [1982] QB. I add to those the speeches of Lord Wilberforce, Lord Salmon and Lord Fraser of Tullybelton in British Steel Corporation v Granada Television Ltd [1981] AC 1096".

Mr Clancy submitted that the material disclosed in those parts of Miss Gill's footage which the BBC intended to broadcast was not confidential at all in any real sense. While I consider that it goes too far to suggest that the information is not confidential at all, I do not consider that the kind of material which is disclosed in the final version of the programme can be said to be highly confidential. The material does not seem to me to be highly sensitive. This seems to me to be a matter to bear in mind when carrying out the balancing exercise.

The unlawful act
[21] As already noted, Miss Gill was in breach of her contract with the pursuers. In addition, it is clear that the BBC induced her to break her contract. This was a deliberate exercise carried out as part of a larger inquiry into bank account and credit card fraud. This could found an action for damages by the pursuers. Mr Keen founded strongly on the unlawful nature of the activities of Miss Gill and the BBC. The BBC had induced her to breach her contract of employment; they had conspired with her to breach the contract. Although at one stage Mr Keen appeared to submit that material obtained by an unlawful act could never be justified, he did concede that there might be cases where an overwhelming public interest would justify publication of such material. I do not accept that material obtained by an unlawful act necessarily becomes so tainted that it could never under any circumstances be used. It seems to me that the consideration that the material was obtained by means which included a deliberate breach of contract induced by the party seeking to exercise their right to freedom of expression is one that has to be weighed in the balance along with the principal competing considerations.

[22] A further point made by the Dean of Faculty was that this was not a case where an employee had observed lapses of security occurring and brought them to the attention of the press. Miss Gill had deliberately created the lapse in security which would not otherwise have occurred. There was no suggestion that what Miss Gill had done had ever been done by an employee of the pursuers before or that she was in any way encouraged by an employee. Again, it seems to me that this is a subsidiary consideration to be taken into account. However, it does not appear to me to be a compelling consideration.

Consequences of broadcast for pursuers
[23] Both Mr Keen and the Dean of Faculty submitted that the consequences of the broadcast would be serious. The pursuers' business may be damaged. Mr Keen went so far as to suggest that the potential damage to the pursuers might be devastating. If they were named in the context of an industry wide investigation and report, major institutions might feel obliged to stop using the pursuers because of clear customer perception that a company named in this context could not be used. The businesses of the pursuers' client companies might be damaged. The revelation of the pursuers' procedures might assist those who have criminal conduct in mind. Although individual employees were not identified the building was identified; the employees could be watched as they came and went and could become the targets of criminals.

[24] Mr Clancy submitted that these claims were exaggerated.

[25] I note that none of the clients of the pursuers is identified. I do not accept that damage to their businesses is likely. Again, none of the employees of the pursuers is identified. So far as the suggestion that employees could be identified by reference to the building and targeted is concerned, it seems to me that a criminal who was intent on suborning an employee would have little difficulty in identifying call centres and watching the employees coming and going. I cannot see that the impact of this programme in that regard would be significant. It is clear that there already is a major problem of bank and credit card fraud and the programme is designed to educate the public about it and alert them to the risks rather than to assist criminals.

[26] I accept that there may be potential consequences for the pursuers if they are identified as the operators of the Call centre into which Miss Gill entered undercover. However, it is difficult to quantify what the likely extent of these might be. Indeed, it seems to me to be an entirely speculative exercise to attempt at this stage to quantify what the adverse consequences, if any, for the pursuers may be.

Conclusion
[27] There is clearly here a conflict of interests. I recognize the right of the pursuers to confidentiality and to expect their employees not to breach their contracts, including confidentiality clauses. I recognize the right of the BBC to freedom of expression. At this stage I have to consider whether the pursuers meet the test set out in section 12(3) of the 1998 Act.

[28] The material relating to the undercover activities of Miss Gill forms part of a larger investigation in the programme into bank account and credit card fraud. The programme is moderate in its approach. In my opinion there is a genuine and strong public interest in exploring the extent to which lapses in security in call centres may contribute to bank account and credit card fraud. The material may be capable of being justified within the Code. The confidential material is not highly sensitive material. While it was obtained by a breach of contract and some of it was created by Miss Gill as an illustration rather than an observation of an existing breach of security, the material is now available to the pursuers and I do not consider that it is so tainted as to be unusable. It seems unlikely that there will be any adverse consequences for the clients or customers of the pursuers or their employees. As to any possible adverse consequences for the pursuers themselves, these are speculative and difficult to quantify.

[29] Thus, when I scrutinize the competing interests I am driven to conclude that I am not satisfied that the pursuers are more likely than not to succeed at proof. Nor does there seem to me to be any basis for applying the less stringent test contemplated by Lord Nicholls in certain circumstances. I conclude that the pursuers have failed to meet the section 12(3) test. Accordingly, I must refuse the motion for interim interdict.

[30] Had it been necessary to go on to consider where the balance of convenience lay I would have required to take account of the various matters canvassed above and, in addition, the question as to whether broadcast could be delayed until after proof. While I accept that the issue of bank account and credit card fraud is likely to continue to be of public interest for some time to come, I consider that it is an issue of live current public interest and that programmes of this kind can become stale. Taking all the considerations into account I conclude that the balance of convenience would lie in allowing the material to be broadcast and I would have exercised my discretion in favour of the BBC. In these circumstances, had it been necessary for me to exercise my discretion I would have refused the motion.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Response Handling Ltd v. British Broadcasting Corporation (BBC) [2007] ScotCS CSOH_102 (03 April 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_102.html Cite as: [2007] CSOH 102, [2007] ScotCS CSOH_102

Scottish Court of Session Decisions