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Leaving the past behind – “right to be left alone” in privacy

  • United Kingdom
  • Technology, Media and Telecoms

21-01-2019

This article considers the implications of the decision of the High Court in XKF v The British Broadcasting Corporation to grant an interim injunction restraining the BBC from broadcasting footage which would reveal the new identity of a former policeman convicted of fraud offences.

Less a “right to be forgotten” case and more a “right to be left alone” case brought as a misuse of private information claim, XKF v BBC [1] follows hot on the heels of NT1 and NT2 v Google LLC [2]. In this case, the High Court granted an interim injunction restraining the BBC from broadcasting footage which would reveal the new identity of a former policeman convicted of fraud offences. Mrs Justice Lang held the broadcast would constitute a disproportionate interference with his Article 8 rights in circumstances where he had a reasonable expectation of privacy in relation to attempts to rehabilitate himself.

Background

The applicant, “XKF”, a serving police officer, was dismissed in 2002 when he was convicted of a number of serious offences including conspiracy to steal £160,000 seized by the Police from criminals.  XKF was sentenced to four years’ imprisonment.  His conviction became spent in 2014. On July 2015 he changed his name. Since his release from prison he had taken steps to rehabilitate himself. He had moved homes, taken qualifications in photography and become employed. He had a new social network.

The BBC tracked him down and on 13 March 2018, a reporter for the Panorama programme approached XKF to confirm his real identity and put to him allegations that whilst serving as a detective, he had “fitted up” a Mr Kevin Lane for a murder he didn’t commit.

XKF applied to the court for an interim injunction restraining broadcast of the footage, and of information about where he lives and works. That is relief to which section 12(3) and 12(4) of the Human Rights Act 1998 (the “HRA”) apply.

The law

Section 12(3) provides that where a court is asked to grant relief which might affect freedom of expression, it shall not to do unless the claimant is likely to establish at trial that publication should not be allowed. Under section 12(4), the court must have particular regard to the importance of the Convention right to freedom of expression and where journalistic, literary or artistic material is involved, to the extent to which the material is already, or is about to become, public, and it is, or would be, in the public interest for the material to be published, and to any relevant privacy code.

The court, therefore, could not grant the relief sought unless satisfied that XKF was likely to establish at trial that the broadcast should not be allowed. 

In a claim for misuse of private information, the claimant must first establish that he has a reasonable expectation of privacy in respect of the information (Article 8).  If such an expectation is established, the court must then balance his expectation of privacy against the broadcaster’s right to freedom of expression (Article 10). 

The Rehabilitation of Offenders Act 1974 was also relevant. Once someone becomes a rehabilitated person in respect of a conviction, he is to be treated for all purposes as a person who has not committed the offence which is the subject of the conviction. The Act does not render the spent convictions confidential [3].

Reasonable expectation of privacy?

Whether or not a claimant has a reasonable expectation of privacy in respect of information is a multi-factorial and objective test. The judge acknowledged that there could be no reasonable expectation of privacy in relation to information which comes to light in a criminal trial.  Article 8, she said, is unlikely to be engaged by information about wrongdoing or iniquity.  Further, information about conduct committed in a public role by public figures is less likely to engage Article 8.  A police officer may be a public figure, and misconduct committed by him engages a weighty public interest if it has been committed in the course of his public role as a police officer.

Is a spent conviction private? The judge accepted that a conviction will usually or normally recede into the past and become part of a person’s private life when it becomes spent under that Act.  That is a relevant, but not decisive factor. The right to rehabilitation, the judge said, is part of the law of personal privacy and it is relevant in an action concerning spent convictions where the claimant relies on harm to his reputation caused by publication or on an interference with family or private life [4]. Also relevant, as apparent from the Google case, is the “relationship between rehabilitated convictions and any role in which the claimant is currently engaged”.

As to whether filming engages Article 8, the judge observed that this would depend on the circumstances, including whether the act was private and whether the filming was in a private space, or done covertly. “There is clearly a spectrum here”, the judge said, and a relevant factor might be whether the circumstances of the filming approached in their nature something akin to harassment or not [5]

Balancing exercise between Article 8 and 10 rights

If the claimant establishes a reasonable expectation of privacy in information, the court must consider how the balance between the expectation of privacy and the press’ right to freedom of expression is to be struck. Neither Article 8 nor Article 10 takes precedence over the other.  Rather, an intense focus on the comparative importance of the specific rights claimed is necessary.  The justification for an interference of each right must be taken into account and a proportionality test must be applied [6]

The question is whether the restraint on publication is necessary and strikes a fair balance.  The judge acknowledged, in that regard, that editors and journalists should be given reasonable latitude which can include the right to identify the subject of the story.  The question is whether revealing his identity pursues a legitimate aim and, if so, whether it is the least intrusive means of achieving that aim.  Exposure of wrongdoing is clearly a legitimate aim, as is exposing police misconduct, and investigating potential miscarriages of justice. 

Decision

Applying these principles to the circumstances of the current case, the judge said that the question was not directly whether XKF had a reasonable expectation of privacy in relation to his previous spent convictions.  Given their context, she said, “He may well not have”.  The question, rather, was whether, despite his past, XKF had a reasonable expectation of privacy in relation to his attempts to rehabilitate himself. 

On the evidence, the judge held that he did. The applicant was likely to establish that his attempt to rehabilitate himself was sincere, and that he had distanced himself from his criminal past.  He was likely to establish at trial that his practical attempts to rehabilitate himself would be jeopardised by the proposed broadcast.

The reasonable expectation of privacy was not materially changed by the fact that some in his new circle knew about the convictions and more knew his old name.

Turning to the balancing exercise between Articles 8 and 10, the judge said that the conflict in this case was not between the right of the BBC to investigate and to report on a potential miscarriage of justice and XKF’s reasonable expectation of privacy.  The applicant did not dispute that the defendant had such a right, but claimed the relief sough would not interfere with that right. Rather, the conflict was between his reasonable expectation of privacy and the method chosen by the BBC to approach and interview him. 

The judge did acknowledge that under the BBC’s editorial guidelines (which it was common ground were a “relevant privacy code” that the judge should take into account for the purposes of s 12 HRA) approval for doorstepping may be given if “there is clear evidence of crime or significant wrongdoing”.  Although she had “considerable doubt” that this justification would apply, the judge conceded that at this stage she could not say whether XKF was more likely than not to succeed at trial on the issue. 

In the judge’s view, the method of approach and the selective way in which the fruits of that method were to be broadcast did not materially inform the public but served to create an impression that the applicant was being evasive in circumstances where he was taken by surprise.  The judge considered that XKF was more likely than not to show at trial that the BBC was seeking to embarrass him and put him on the spot in circumstances where it would have been fairer to allow him to give a considered response.

The judge then turned to the justifications for any interference with the parties’ prospective rights.  The justification, in her view, for the interference with the BBC’s rights was that it protected XKF’s practical attempts to rehabilitate himself in a new job, in new social relationships and in a new home.  On the other hand, the justification for the interference with XKF’s right would not, in the judge’s view, be the pursuit of an investigation into a miscarriage of justice, but rather what appeared to be a desire to broadcast footage of him in circumstances that made him look and sound evasive, but which did not materially contribute to informing viewers about the case. 

Turning to the question of proportionality, the judge took into account that the Court of Appeal in considering Mr Kevin Lane’s conviction for murder (for which he alleged XKF “fitted him up”) had dismissed the appeal which was based to a significant extent on criticism about specific conduct of XKF in the investigation and his general corruption and criminality.

In all these circumstances, Laing J concluded that the interference with the BBC’s rights was proportionate to a legitimate aim and that the relief sought by XKF went no further than necessary to support that aim.  It did not prevent the BBC from reporting the allegations made by Mr Kevin Lane but rather from broadcasting footage of XKF near his home and enabling him to be readily identified by those who knew him.  Conversely, it would not, in the judge’s view, be a proportionate interference with XKF’s Article 8 rights and his reasonable expectation of privacy for the interview to be broadcast where broadcast was not necessary to achieve a legitimate aim of investigating or reporting on a potential miscarriage of justice.

Comment

This case has clear parallels with the Google “right to be forgotten” cases. It was not a right to be forgotten case, since the applicant would have faced a significant hurdle in section 32 of the Data Protection Act, which provides a comprehensive exemption to the restrictions imposed on processing of personal data, where that processing is for journalistic, artistic or literary purposes. Google may not be processing data for journalistic purposes but the BBC certainly was.

Nor was the applicant asking to be forgotten. The information he sought to protect was not his convictions in 2003 or even his other allegedly “spectacularly corrupt” conduct but the right not to be identified as the person he had now become. The private information that the court held should be protected was the claimant’s attempts to rehabilitate himself.  Undermining those attempts by interfering with his privacy, was not, in the court’s view, necessary to achieve the BBC’s purpose, which was otherwise a legitimate one, of investigating a potential miscarriage of justice or the failings of the CCRC. 

The law of privacy has its origins in breach of confidence, but cases such as these (and recent cases involving pictures taken in public) beg the question of where the law of privacy is heading. A technical analysis of what information the applicant had a reasonable expectation in leads to difficulty. Clearly it was not his new identity, since he was living under it. The court did not consider that he could hide his old identity – it was in the public interest for his criminality and wrongdoing to remain on the public record. The link between his old identify and his new identity was known to a number of his acquaintances. It would be difficult to characterise it as confidential. The law on privacy is moving away from its origins in breach of confidence and towards a right to be left alone and not to have your private life intruded upon. It is telling here that the judge’s view was that the applicant was entitled to walk to work without being suddenly ambushed by questions which required him to reveal his new identity and comment out of the blue on matters that happened many years ago, and which he might not readily be able to call to mind. 



[1] XKF v The British Broadcasting Corporation [2018] EWHC 1560 (QB) (14 May 2018).

[2] [2018] EWHC 779 (QB).

[3] See L v Law Society [2008] EWCA Civ 811 and KJO v XIM [2011] EWHC 1768 (QB).

[4] See NT1 and NT2 v Google LLC [2018] EWHC 779 (QB).

[5] See R (Wood) v The Commissioner for Police of the Metropolis [2010] 1 WLR 123).

[6] See YXB v TNO [2015 EWHC (QB) 826.

 

This article was first published in Entertainment Law Review Volume 30, Issue 1, pages 29-32 printed by Thomson Reuters, trading as Sweet & Maxwell and is reproduced with the kind permission of the publisher.