THIRD SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 44647/98
by Geoffrey Dennis PECK
against the United Kingdom
The European Court of Human Rights, sitting on 15 May 2001 as a Chamber composed of
MrJ.-P. Costa, President,
MrW. Fuhrmann,
MrL. Loucaides,
SirNicolas Bratza,
MrsH.S. Greve,
MrK. Traja,
MrM. Ugrekhelidze, judges,
and Mrs S. Dollé, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 22 April 1996 and registered on 23 November 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant is a British national, born in 1955 and living in Essex. He is represented before the Court by Mr Philip Leach, a solicitor practising in London. The respondent Government are represented by Ms Ruma Mandal, Agent, Foreign and Commonwealth Office.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. Closed Circuit Television (“CCTV”) and the relevant footage
In April 1994 Brentwood Borough Council (“the Council”) installed the CCTV surveillance system in Brentwood, Essex. It was fully operational by July 1994. The Council’s monitoring operator had a direct visual and audio link to the police.
In August 1995 the applicant was suffering from depression as a result of his personal and family circumstances. On 20 August 1995 at 11.30 p.m. he walked alone down the High Street towards a central junction in the centre of Brentwood with a kitchen knife in his hand and he attempted suicide by cutting his wrists. He stopped at the junction and leaned over a railing facing the traffic with the knife in his hand. He was unaware that a CCTV camera, mounted on the traffic island in front of the junction, was filming his movements. The CCTV footage later disclosed did not show the applicant cutting his wrists. The CCTV operator was only aware of an individual in possession of a knife at the junction. The police were notified and arrived. They took the knife from the applicant, gave him medical assistance on the spot and brought him to the police station. The applicant was detained under the Mental Health Act 1983. His custody record refers to the applicant’s self-inflicted injury to his wrists on arrival and notes that he was examined and treated by a doctor, after which he was released without charge and taken home by police officers.
2. Release and publication of the footage
On 14 September 1995 the CCTV working party of the Council agreed to authorise the release of regular press features on the CCTV system. The Council also decided to cooperate with third parties in the preparation of factual programmes concerning their CCTV system.
The Council’s first press feature (“CCTV News”) was released on 9 October 1995 and included two still photographs taken from the CCTV footage of the applicant to accompany an article entitled “Defused – the partnership between CCTV and the police prevents a potentially dangerous situation”. The applicant’s face was not specifically masked. The article noted that an individual had been spotted with a knife in his hand, that he was clearly unhappy but not looking for trouble, that the police had been alerted, that the individual had been disarmed and brought to the police station where he was questioned and given assistance for his problems. The article included the name of a Council employee in the event that readers wished to obtain copies of the pictures.
On 12 October 1995 the “Brentwood Weekly News” newspaper used a still photograph of the incident involving the applicant on its front page to accompany an article on the use and benefits of the CCTV system. The applicant’s face was not specifically masked.
On 13 October 1995 an article entitled “Gotcha” appeared in the “Yellow Advertiser”, a local newspaper with a circulation of 24,000 approximately. The article was accompanied by a photograph of the applicant taken from the CCTV footage. The newspaper article referred to the applicant having been intercepted with a knife and a potentially dangerous situation being defused as a result of the CCTV system. It was noted that the applicant had been released without charge.
The Council also provided footage of the incident involving the applicant to Anglia Television. On 17 October 1995 extracts from that footage were included in its news programme about the CCTV system, a local broadcast to an average audience of 350,000. The applicant’s face had been masked at the Council’s oral request but that masking was later considered inadequate by the Independent Television Commission (see below). On 18 October 1995 the Chairman of the Council informed the Council Technical Services Committee that co-operation had been, and would continue to be, given in the preparation of factual documentary programmes concerning the CCTV system. He referred to the feature on CCTV which had been broadcast by Anglia Television on the previous day.
In late October or November 1995 the applicant became aware that he had been filmed on CCTV and that footage had been released because a neighbour told his partner that the former had seen him on television. He did not take any action then as he was still unwell with depression.
On 16 February 1996 a second article entitled “Eyes in the sky triumph” was published in the “Yellow Advertiser” outlining the benefits of CCTV in the fight against crime and was accompanied by the same photograph as had been previously used by that newspaper. It appears that a number of people recognised the applicant. A letter of 25 April 1996 from the “Yellow Advertiser” gave the opinion that the applicant was not identifiable.
In or about that time the Council agreed to furnish CCTV footage of, inter alia, the applicant to the producers of “Crime Beat”, a series on BBC national television with an average of 9.2 million viewers. The Council imposed orally a number of conditions on the producers including that no one should be identifiable in the footage. In early March 1996 the applicant was told by friends that they had seen him on 9 March 1996 in trailers for an episode of “Crime Beat” which was to be broadcast soon. On 11 March 1996 he complained to the Council about the forthcoming programme and the Council thereby became aware of his identity. The Council contacted the producers who confirmed that the applicant’s image had been masked. That evening the CCTV footage was shown on “Crime Beat”. The applicant’s image was masked in the main programme itself but the Broadcasting Standards Commission (see below) later found that masking inadequate. Many of the applicant’s friends and family who saw the programme recognised the applicant.
In response to the applicant’s request for a copy of the Council’s licence agreement with the producers of “Crime Beat”, by letter dated 21 February 1997 the Council provided an unsigned and undated agreement which did not appear to relate to the applicant but which contained a requirement to mask all faces in any copies of the relevant video. By letter dated 31 October 1997 the Council confirmed that it could not locate a signed copy of the agreement with the producers but it included an earlier draft of that agreement which had been signed by the producers, which related to the footage of the applicant but which did not include any masking requirement.
The applicant made a number of media appearances thereafter to speak out against the publication of the footage and photographs. On 28 March 1996 he participated in a national radio programme (BBC Radio 4). On 31 March 1996 he spoke to a journalist who published an article in a national newspaper and this was the first time the applicant’s name appeared in the media. Other newspaper articles included photographs of the applicant or quotes given by him. He also appeared on national television: on 13 April 1996 in Channel 4’s “Right to Reply”, on 25 July 1996 on Channel’s 5’s “Espresso” and on 5 August 1997 on BBC 1’s “You Decide”. He also had his photograph published in the “Yellow Advertiser” on 25 October 1996.
3. The Broadcasting Standards Commission (“BSC”)
On 25 April 1996 the applicant lodged a complaint with the BSC in relation to, inter alia, the “Crime Beat” programme alleging an unwarranted infringement of his privacy and that he had received unjust and unfair treatment. On 13 June 1997 the BSC upheld both of the applicant’s complaints. The BSC noted that the BBC had already accepted that it had meant to mask the applicant’s image and that this had not been done in the trailer due to an oversight. The BSC also considered the masking during the programme inadequate as the applicant had been recognised by viewers who had not seen the trailer. It was accepted that the BBC had not intended that the applicant would be identifiable, but the BSC found that, nevertheless, the effect was to reveal to the applicant’s family, friends and neighbours an episode which he did not wish to reveal, and that the outcome had been distressing and amounted to an unwarranted infringement of his privacy. The BSC added that the fact that the applicant later chose to speak publicly about this incident did not alter the infringement established. The BBC was directed to broadcast a summary of the adjudication of the BSC immediately prior to, or after, the episode of the “Crime Beat” programme on 12 June 1997 and a summary of the adjudication was also published in the “Daily Telegraph” newspaper on 12 June 1997.
4. The Independent Television Commission (“ITC”)
On 1 May 1996 the applicant complained to the ITC in respect of the broadcast by Anglia Television. Anglia Television had already apologised to the applicant and conceded that it had breached the privacy requirements of section 2(2) and (5) of the ITC code (sections concerning coverage of events in public and scenes of suffering and distress). The ITC noted that the implication was that a man carrying a knife was likely to be intent on a criminal act. It found that the applicant’s identity was not adequately obscured and that he was readily identifiable and easily recognisable by those who knew him. It found that section 2(2) and (5) of the code had been breached and the decision of the ITC was published in its Programme Complaints and Interventions Report of June 1996. Given the admission and apology by Anglia Television, no further action was taken by the ITC.
5. The Press Complaints Commission (“PCC”)
On 17 May 1996 the applicant complained to the PCC in respect of the articles published in the “Yellow Advertiser”. The PCC rejected the applicant’s complaint without a hearing and the decision was communicated to the applicant by letter dated 2 August 1996. The PCC considered that, whether or not the applicant was identifiable from the photographs, the events in question took place in a town high street, open to public view. It did not consider that the juxtaposition of the photographs and the articles would imply that the applicant had committed any crime and it had been made clear that he was released without charge, the second article indicating that the applicant was ill at the relevant time.
6. The judicial review proceedings
On 23 May 1996 the applicant applied to the High Court for leave to apply for judicial review of the Council’s disclosure of the CCTV material arguing, inter alia, that that disclosure had no basis in law and, in amended proceedings, that the disclosure by the Council was, if lawful, irrational. The application for judicial review was rejected by judgment of 25 November 1997. The High Court found that the purpose of section 163 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) was to empower a local authority to provide CCTV equipment in order to promote the prevention of crime or the welfare of victims of crime:
“By publicising information about the successful operation of the CCTV, the Council was providing information about its effectiveness and thereby reinforcing the deterrent effect of its operation. The making available to the media of footage from the CCTV film to show the effectiveness of the system can properly be said ... to be incidental to and to facilitate the discharge of the Council’s function under Section 163 [of the 1994 Act] because it thereby increased, or tended to increase, the preventative effect of the equipment which [the Council was] providing for the purposes of the prevention of crime.”
It concluded that the Council had the power to distribute the CCTV footage to the media for transmission by virtue of section 111 of the Local Government Act 1972 in the discharge of their functions under Section 163 of the 1994 Act.
As to the “rationality” of the Council’s decision to disclose, the applicant submitted that the Council acted irrationally in disclosing the footage of the applicant with the aim of crime prevention when the applicant was not, in fact, involved in any criminal activity. He argued that by failing to consult with the police to see if he had been charged with a criminal offence and to impose sufficient restrictions as regards his identity, the Council had facilitated an unwarranted invasion of his privacy which was contrary to the spirit, if not the letter, of the Council’s own guidelines.
The High Court judge had some sympathy with that submission but did not consider it correct in law. He went on:
“I have some sympathy with the applicant who has suffered an invasion of his privacy, as is borne out by the findings of the Independent Television Commission and the Broadcasting Standards Commission. However, if I am right in deciding that the Council does have power to distribute the film footage from its CCTV system, there may on occasion be undesirable invasions of privacy. Unless and until there is a general right of privacy recognised by English law (and the indications are that there may soon be so by incorporation of the European Convention on Human Rights into our law), reliance must be placed on effective guidance being issued by Codes of practice or otherwise, in order to try and avoid such undesirable invasions of a person’s privacy.
The evidence is that the CCTV cameras in public places play an important role in both crime prevention and crime detection. In this case, the film footage showed a man walking in the High Street carrying a large knife in his hand. It did not show him attempting to commit suicide. It was plainly a potentially dangerous situation which the Council’s monitoring employee quite properly put to the police, as a result of which the man was arrested. ... It was not unreasonable for the Council to conclude that the footage was a useful example of how a potentially dangerous situation can be avoided. ... In those circumstances, it seems to me that the decision of the Council to distribute the film footage to the media could not be said to be irrational or unreasonable, bearing in mind that the film did not show an attempted suicide and that, at the time, they did not know the applicant’s identity. They therefore had no reason to consult the police as to whether an offence had been committed. They did not sell the take-outs from the CCTV footage for commercial gain and, more importantly, they had imposed on the television companies a requirement that an individual’s face should be masked. It is true that that was a verbal rather than a written requirement, but I am not persuaded that what happened was likely to have been different if it had been a written requirement. In the event, the fault lay with the television companies. Anglia TV failed to mask the applicant’s identity adequately. The BBC failed to mask the applicant’s identity at all in the trailers. As soon as the council were notified about that by the applicant, two days before the programme went out, which was the first time they were aware of the applicant’s identity, they immediately contacted the BBC and received assurances that his image had been masked in the programme. In the event, unknown to the Council, it had not been adequately masked in the programme.
I am sure that lessons can be learnt from this unfortunate incident, and it may be that, with the benefit of hindsight, the Council will want to see if they can tighten up their guidelines to seek to avoid a similar incident in the future. I am, however, equally sure that, in the circumstances that I have described, the Council cannot be said to have acted irrationally in the sense that they had taken leave of their senses or had acted in a manner in which no reasonable local authority could sensibly have acted.”
An application to the High Court for leave to appeal to the Court of Appeal was rejected. The subsequent leave application to a single judge of the Court of Appeal was rejected on 21 January 1998 because:
“... the [High Court] Judge was plainly correct in his interpretation of the relevant statutory provisions and the Council was neither acting outside its statutory authority nor irrationally in making the film and photographs available to the media. The injury, of which complaint is made, arises from a failure on the part of the media to sufficiently disguise the applicant when making the film and photographs visible to the public. That is and has been the subject of complaint against the media involved but is not capable of supporting a claim for a declaration against Brentwood Borough Council.”
Following an oral hearing before the full Court of Appeal, the applicant’s leave application was dismissed on 19 February 1998.
B. Relevant domestic law and practice
1. The relevant powers of the Council
The Criminal Justice and Public Order Act 1994 (“the 1994 Act”) came into force on 3 February 1995. Section 163, insofar as relevant, provides as follows:
“1. Without prejudice to any power which they may appear to exercise for those purposes under any other enactment, a local authority may take such of the following steps as they consider will, in relation to their area, promote the prevention of crime or the welfare of the victims of crime -
(a) providing apparatus for recording visual images of events occurring on any land in their area;
(b) providing within their area a telecommunications system which, under Part II of the Telecommunications Act 1984, may be run without a licence;
(c) arranging for the provision of any other description of telecommunications system within their area or between any land in their area and any building occupied by a public authority.”
2. Any power to provide, or to arrange for the provision of, any apparatus includes power to maintain, or operate, or, as the case may be, to arrange for the maintenance or operation of, that apparatus.”
Section 111(1) of the Local Government Act 1972 provides, insofar as relevant, as follows:
“Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have the power to do anything ... which is calculated to facilitate, or is conducive or incidental to the discharge of any of their functions.”
In February 1994 the Council approved Guidelines for the Operation and Management of CCTV. In the section headed “privacy to neighbouring properties”, it was noted that the CCTV system should ensure adequate provision for the avoidance of unwarranted intrusion in areas surrounding those under surveillance by the CCTV system. In the event of it becoming apparent that privacy was being violated, it was foreseen that the Council would take such steps as to ensure that “either an electronic (digital) screening or physical screening is taking place”.
Essex Police Policy Guidelines dated June 1995 concern the involvement of the police in the installation and operation of CCTV systems in their remit. In the section concerning the release to the media of video footage, it was pointed out that care should be taken not to jeopardise any existing or future legal proceedings, that licence agreements covering all appropriate terms and conditions of release should be drawn up and that care should always be taken to ensure that victims or other innocent parties featured were aware of its potential use and, where possible, their consent obtained. Where possible, the identity of victims, police employees and suspects (where identification might jeopardise criminal proceedings) should be masked.
As an extension of its Crime Reduction Programme announced in July 1998, Government funding for CCTV systems was introduced in March 1999 and the sum of 153 million pounds sterling (GBP) has been made available over a period of three years, of which over GBP 40 million has already been allocated to more than 200 CCTV schemes. One of the requirements of such funding is that the scheme should be regulated by a suitable code of practice to ensure that it operates fairly and with proper respect for personal privacy. In the first year of operation of the CCTV system in Brentwood, there was a 34% reduction in crime.
2. Judicial review
Where a public authority has exceeded its powers or has acted irrationally or has reached a decision in breach of the rules of procedural fairness, then a person aggrieved may challenge the decision by means of judicial review. The English courts do not recognise proportionality as a separate head of judicial review, but if a decision is so disproportionate to its intended objective as to be irrational, the Court will strike it down.
3. Private law remedies
The remedy of breach of confidence is made up of three essential elements: the information itself must have “the necessary quality of confidence about it”, the information “must have been imparted in circumstances importing an obligation of confidence” and there must have been an “unauthorised use of that information to the detriment of the party communicating it” (see, for example, Coco v. A.N. Clark Engineers Ltd [1969] RPC 41, at 47). More recent developments as regards this action are detailed in the case of the Earl and Countess Spencer v. the United Kingdom (application nos. 28851/95 and 28852/95, Commission Decision of 16 January 1998, Decisions and Reports 25, p. 56).
Where a public official abuses his position by performing an administrative act maliciously, or which he knows he has no power to do, and causes foreseeable harm, then the injured person may recover damages on the basis of misfeasance in public office.
The remedy of defamation is well established in English law. Every person is entitled to his good name and to the esteem in which he is held by others and has a right to claim that his reputation shall not be disparaged by defamatory statements made about him to a third person or persons without lawful justification or excuse.
The essential elements of malicious falsehood are that a defendant has published words about the claimant that are false, that they were published maliciously and that special damage has followed as a direct and natural result of their publication (Kaye v. Robertson [1991] FSR 62).
The tort of nuisance consists of an unwarranted interference with the use or enjoyment of land (see, for example, Thomas v. National Union of Mineworkers [1986] Ch 20). Trespass consists of an unjustifiable intrusion by one person upon the land in the possession of another. The domestic courts have recently been developing the concept of a tort of harassment causing personal injury (see, for example, Burnett v. George [1992] 1 FLR 525 and Khorasandjin v. Bush [1993] 3 All ER 669).
Depending on the circumstances in which any film has been taken or published, the unauthorised taking or publication of pictures might be prevented (or damages recovered) on the grounds of copyright, breach of contract or inducing breach of contract.
4. Statutory protection for privacy
Statute law provides certain protection in the form of the Protection from Harassment Act 1997. Statutory regulation of surveillance is provided by the Interception of Communications Act 1985, the Intelligence Services Act 1994 and by the Police Act 1997. The purpose of the Regulation of Investigatory Powers Act 2000 is to ensure that the relevant investigatory powers of the authorities are used in accordance with human rights. Many users of CCTV will have to comply with the provisions of the Data Protection Act 1998. Specific statutory protection of privacy is accorded in certain other contexts such as the anonymity of rape victims (Sexual Offences (Amendment) Act 1976) and the prohibition of the publication of the names or photographs of children involved in legal proceedings (Children and Young Persons Act 1933). Finally, the Human Rights Act 1998 came into force in October 2000. It requires primary and subordinate legislation to be read and given effect in a way that is compatible with the Convention and it makes it unlawful for a public authority to act in a manner incompatible with the Convention.
5. The media commissions
The Broadcasting Standards Commission (“BSC”) was established by section 106 of the Broadcasting Act 1996 with effect from April 1997. It is the duty of the BSC to draw up and publish a code giving guidance as to the principles to be observed, and practices to be followed, in connection with the avoidance of unjust or unfair treatment in programmes or the unwarranted infringement of privacy in programmes (section 107 of the 1996 Act). In this respect, paragraph 16 of the code points out that broadcasters should take care with material recorded by CCTV cameras to ensure identifiable individuals are treated fairly and that “any exceptions to the requirement of individual consent would have to be justified by an overriding public interest”. The BSC is also required to consider and adjudicate on complaints relating to unjust or unfair treatment in programmes, or to unwarranted infringement of privacy in programmes (sections 110 and 111 of the 1996 Act). The BSC has powers, inter alia, to direct broadcasting bodies to publish the findings of the BSC or a summary of them (section 119).
The Independent Television Commission (“ITC”) is a public body set up by the Broadcasting Act 1990 to licence and regulate commercially funded television (excluding television services provided by, inter alia, the BBC). The Act requires the ITC to draw up and enforce a code governing programming standards and practice, which code covers issues of privacy. The ITC adjudicates upon complaints made under the code and, where a breach is confirmed, the ITC may impose sanctions such as requiring on-screen apologies, ordering fines and revoking licences.
The Press Complaints Commission (“PCC”) is a non-statutory body set up by the newspaper industry for the purposes of self-regulation. The PCC operates a voluntary code of practice, which code includes provisions relating to privacy. If a newspaper is found to be in breach of the code, the newspaper is to publish the adjudication of the PCC. The PCC has no legal powers to prevent publication of material, to enforce its rulings or to grant any legal remedies to a complainant.
COMPLAINTS
The applicant complains about the disclosure of the CCTV material to the media, the consequent publications and broadcasts and the lack of an effective domestic remedy in that respect. He invokes Articles 8 and 13 of the Convention.
THE LAW
The applicant complains under Article 8 of the Convention about the disclosure by Brentwood Borough Council of the relevant CCTV footage to the media which led to two publications by the “Yellow Advertiser” and to broadcasts by Anglia Television and the BBC. He submits mainly that the disclosure by the Council was a disproportionate interference with his private and family life. He also claims that the television stations are public authorities and that therefore their broadcasts also constituted an unjustified interference with his private and family life. He further argues that the State failed to fulfil its positive obligation to protect his private and family life because he had no relevant and effective domestic remedy. Article 8, in so far as is relevant, reads as follows:
“1. Everyone has the right to respect for his private and family life, ...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... public safety or ... for the prevention of disorder or crime, ...”
The Government contend, in the first place, that the applicant’s right to private life was not engaged. They mainly argue that the incident in question did not form part of his private life given the substance of what was filmed and the location and circumstances of filming. The applicant’s actions were already in the public domain. Disclosure of those actions simply distributed a public event to a wider public and cannot change the public quality of the applicant’s original conduct and render it more private. The Government also maintain that the applicant waived his rights by choosing to do what he did, where he did, and submit that the fact that the applicant does not complain about being filmed, as such, amounts to an acknowledgement that the filming did not engage his right to the protection of his private life. Secondly, they consider the question of whether there has been an interference with the applicant’s private life is “not clear-cut”, and submit that certain factors should be borne in mind in this respect, including the nature of the impugned act and the parties’ conduct.
Thirdly, the Government submit that any interference was “in accordance with the law” in that it fell within section 163 of the Criminal Justice and Public Order Act 1994 and section 111 of the Local Government Act 1972, both of which provisions complied with the Convention’s “quality of law” requirements. Fourthly, any interference pursued a legitimate aim. As accepted during the judicial review proceedings, the Council’s intention in installing and operating the CCTV system and in disclosing footage to the media was the prevention of crime and, consequently, securing public safety and private property.
Fifthly, any interference was, according to the Government, proportionate. They point out that the domestic courts have already assessed the legality and reasonableness of the disclosure, and this Court should not substitute its own assessment for that of the domestic institutions.
As to the reasons why any such interference was proportionate, the Government emphasise their obligation to protect the life and property of its citizens. Given the margin of appreciation open to Governments to implement the most suitable measures to combat crime, the Government’s view of CCTV as a powerful weapon in that combat must be accepted. Disclosure of CCTV footage complements this aim: the policy is to give CCTV as prominent a role as possible in order to avoid covert surveillance, to inspire public confidence and support for the system and to deter criminals. This aim of deterrence was expressly accepted by the High Court as one of the bases of the Council’s conduct, and crime has gone down since the installation of the CCTV system. An important element of the publicity given to CCTV has been the release to the media of footage and the CCTV footage of the applicant was an entirely suitable illustration of the type of situation constituting good publicity for CCTV. It was not a private tragedy sensationalised by the disclosure of the footage since it did not show the applicant committing suicide and it is not apparent from the footage disclosed that the applicant had tried to commit suicide or injure himself in any way. It was not obvious to the Council operator, who did not know on the relevant evening that the applicant had tried to commit suicide. Rather the footage quite plainly demonstrated the police defusing a potentially dangerous situation.
In addition, they argue that co-operation with the media to publicise the CCTV system would be undermined if they had to obtain the consent of everyone who appeared on the image, and the Government refer to scenes on crowded streets and to footage which may include missing persons whose consent cannot be obtained.
Moreover, the Government submit that the nature of the impugned act and the parties’ conduct are relevant considerations also in this context. As to the impugned act, they point out that the disclosed footage was obtained neither covertly, intrusively or selectively and the degree of intrusion was limited. The applicant, the Government suggest, courted attention by going to a busy junction at the centre of Brentwood clearly brandishing a knife, and he compounded the publicity thereafter by his voluntary appearances in the media. Indeed it was during those appearances that he was first identified to the public and that the first public reference was made to his attempted suicide. The Council, the Government contend, acted in good faith in the public interest with no commercial motive. Since it had no facilities to mask faces on CCTV footage, it released the footage to the media on the basis that the relevant television companies would mask the applicant’s image. The fact that those companies did not do so, or did so inadequately, is not the responsibility of the Council.
Furthermore, the Government consider the applicant’s arguments in relation to his family life to be even weaker.
Finally, the Government maintain that there was no breach of any positive obligation and, more particularly, they argue that the applicant had available to him effective domestic remedies (their fuller submissions in this regard are set out under Article 13 of the Convention below). Indeed they consider this complaint to be even weaker than the complaint against the Council, given the necessary support for the media’s freedom of expression and of the public’s related right to receive information guaranteed by Article 10 of the Convention.
The applicant maintains, in the first place, that the disclosure of the footage constituted a serious interference with his private life and, given the significant impact on family members, with his family life. He clarifies that he does not complain about being filmed by CCTV (as this saved his life), but rather about the disclosure by the Council to the media of the CCTV material which led to the relevant publications and broadcasts.
While the CCTV material disclosed did not show him actually cutting his wrists, the applicant argues that it concerned a period immediately following his suicide attempt and thus related to that personal matter. He may have been in the street, but it was late at night, he was not taking part in a public demonstration (where part of the reason for participating is to be seen) and, given his psychological state, it cannot be said that he was there voluntarily at all. He was unaware that he was being filmed and the disclosure took place without his knowledge or consent and the footage was later broadcast and the stills published without his permission and in a manner which did not exclude his identification by family, friends, neighbours and colleagues. The BSC, the ITC and the High Court found that his privacy had been invaded and, given those findings, the PCC’s contrary view is not tenable.
In addition, the applicant maintains that the jurisprudence of the Convention organs accepts that the occurrence of the relevant event in a public place is only one element in the overall assessment of whether there has been an interference with private life, other factors including the use made of the material obtained and the extent to which it was made available to the public. In contrast to that jurisprudence, not only was disclosure of the CCTV material specifically foreseen by the Council, but that disclosure was made to the media. Moreover, the applicant maintains that it cannot be said that he “unequivocally” waived his rights under the Convention on 20 August 1995.
Secondly, the applicant considers that that the interference with his rights was not “in accordance with the law”, mainly because it was not foreseeable. The 1994 and 1972 Acts merely provide a power to make disclosure and, in the absence of more specific disclosure provisions, they failed to protect the applicant against arbitrary interferences with his rights. Thirdly, disclosure of the CCTV material had no legitimate aim because any connection between that aim (deterring crime) and his conduct was too remote.
Fourthly, the applicant maintains that the interference was not proportionate. He considers the interference serious. The relevant footage related to an attempted suicide, he was unaware he was being filmed and the footage showed the immediate aftermath of this episode while he still held the knife. The footage was disclosed to the written and audio visual media with large audiences, without his consent or knowledge and without masking at all or adequately his identity. His image, even in those circumstances, was broadcast to millions and he was recognised by a large number of persons who knew him, including family members, friends, colleagues and neighbours.
In addition, the Council should have, and could have, taken reasonable steps to identify the applicant and inform themselves of his situation. It should have, since the purpose of disclosing the film was to advertise widely the benefits of CCTV and not to identify a criminal. It could have, because there was only one person in the image whose identification would have been possible via the police, called by the CCTV operator to the scene.
Moreover, he considers that the Council’s attempt at ensuring the masking of the relevant image was inadequate. If the Council did not have the facilities themselves, they should have ensured that the media properly carried out the masking. Written agreements would be a step in the right direction, but none were completed prior to the disclosures in his case.
Furthermore, the applicant submits that there was no sufficiently important countervailing public interest. He was not a public figure and he had no public role. The disclosure was made not to catch a criminal or find a missing person but to respond to the general aim of publicising the effectiveness of the CCTV system, to which aim properly masked images or other less intrusive footage would have responded.
The applicant contests the Government’s assertion that the High Court had assessed the proportionality of the interference. He also rejects their contention that he courted attention on 20 August 1995. He further disputes the Government’s questioning of his motivation by their reference to his voluntary media appearances in 1996: his image had already been published and broadcast without his consent and he was identified by those who knew him. He then correctly pursued any remedies available, which procedures are public, and he cannot be criticised for speaking about his predicament to responsible media. He faced the classic dilemma of one whose privacy has been interfered with: seeking a remedy and defending one’s position by speaking out inevitably leads to further publicity.
As to his complaint of an interference by the television companies, he submits that the BBC, acting under Royal Charter, is a public authority as is Anglia Television which acts under the authority of the ITC constituted under the Broadcasting Act 1990. Even assuming those media could rely on their rights under Article 10 of the Convention, for the reasons outlined above, the relevant broadcasts and publications also constituted a manifestly disproportionate interference with his private and family life.
Finally, as to his complaint that there has been a failure by the State to fulfil its positive obligation to protect his private and family life, he maintains his submission that he had no effective domestic remedies in respect of the relevant disclosures, broadcasts and publications. He notes that the Commission in the above-cited Spencer case (at p. 67) accepted that the absence of an actionable remedy in relation to publications could, in principle, amount to a lack of respect for private life.
2. The applicant also complains under Article 13 in conjunction with Article 8 of the Convention that he had no effective domestic remedy in relation to the relevant disclosures, broadcasts and publications. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government explain that the need for a law of privacy has been the subject of much debate for many years, many private member’s bill and a number of official reports. The debate continues. However, the absence of a general right to privacy in domestic law does not, of itself, show a lack of respect for the applicant’s private life and the question is whether the regime of legal protection which exists adequately protects the applicant’s rights. The Government consider that it does: they point out that the common law and statutory remedies collectively provide a comprehensive regime of legal protection for privacy and therefore perform substantially the same function as a law of privacy.
In particular, the Government point out that the applicant has already been able to assert and vindicate his claims before the BSC, the ITC and the PCC. They accept that it is not intended that the media commissions provide a “legal remedy, in the sense of making pecuniary compensation available, to an aggrieved individual who may have been injured by an infringement of the relevant codes”. However, they contend that Article 13 does not require in every case a “court” or that a pecuniary award be available. In addition, the Government argue that the remedy of judicial review is also capable, in principle, of providing an adequate remedy and the rejection of the applicant’s case does not undermine the effectiveness of that remedy.
The Government also maintain that a number of other remedies were available to the applicant. They consider the breach of confidence remedy to be the most relevant, suggesting that the applicant would have been entitled to bring such an action if he had been filmed “in circumstances giving rise to an expectation of privacy on his part”. The Government underline that this is an area of the law which is heavily dependent on policy considerations and, consequently, it is an area that has been, and will continue to be, developed by the courts. The Convention jurisprudence has had an important impact to date on such developments and will have an even stronger impact with the coming into force of the Human Rights Act 1998. They also submit that he could have brought an action for defamation or malicious falsehood if any item was misreported so as to suggest that he had been involved in a criminal act of violence against some other person.
The applicant maintains that he had no effective domestic remedy. He pursued the most relevant remedies (the media commissions and judicial review) but those remedies were ineffective: the “irrationality” criteria in judicial review cannot be equated with the proportionality test under Article 8 and the media commissions cannot award damages.
In addition, he argues that a breach of confidence action would have no realistic prospects of success. He notes that the Government have not quoted a single case where an individual in a relatively similar situation obtained even partial satisfaction through this remedy. He considers their assertion that an expectation of privacy would be sufficient to give rise to such a remedy to be inaccurate in domestic law, and he finds it noteworthy that the Government do not contend that he failed to exhaust domestic remedies by not taking such an action. Moreover, he considers that the other remedies to which the Government refer are not relevant to his case. Certain of the statutes came into force after the relevant time, other statutes (relating for example to secret surveillance) could have no conceivable impact in the present case, and the common law remedies to which the Government refer (in defamation, malicious falsehood, harassment and breach of confidence) are simply not relevant to the applicant in the particular circumstances of his case.
The Court notes that the applicant complains under Article 8 alone and in conjunction with Article 13 of the Convention, inter alia, that he did not have effective domestic remedies. While the Government maintain that the applicant did have such remedies available, they do not claim that he failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. In any event, the Court considers that there is a close connection between any issue under Article 35 § 1 as regards exhaustion of domestic remedies and the merits of the applicant’s complaints under Articles 8 alone and in conjunction with Article 13 of the Convention. Accordingly, it joins any issue of exhaustion of domestic remedies to the merits of the application (see, for example, Rotaru v. Romania [GC], no. 28341/95, § 40, ECHR 2000-V).
The Court considers that the complaints of the applicant raise serious issues under Article 8 both alone and in conjunction with Article 13 of the Convention which require determination on the merits. It follows that they cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring the complaints inadmissible has been established.
For these reasons, the Court by a majority
Declares the application admissible, without prejudging the merits of the case.
S. DolléJ.-P. Costa Registrar President
Full & Egal Universal Law Academy