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<strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain 79 Ofcom Broadcasting Code The Ofcom Broadcasting Code (OBC) regulates broadcast media and replaces the Independent Television Commission and the Broadcasting Standards Code. Section 8 of the OBC sets out provisions in respect of privacy. The purpose of the section is to ensure that broadcasters avoid “any unwarranted infringement of privacy in programmes, and in connection with obtaining material included in programmes”. This wide-ranging principle means that the OBC addresses the methods by which material is captured, as well as the nature of the broadcast itself. Broadcasters are required to justify that an invasion of privacy is warranted. If a broadcaster claims that the invasion is warranted because it is in the public interest, it must be able to demonstrate that this prevails over any right to privacy. Examples of the public interest under the OBC include revealing or detecting crime, protecting public health or safety, exposing misleading claims made by individuals or organisations or disclosing incompetence that affects the public. Notably, the OBC does not define exhaustively what is deemed “warranted”, so an invasion of privacy may be justified in circumstances other than those in the public interest. The OBC makes particular reference to two forms of intrusive mechanisms used in order to collate materials for broadcast – “doorstepping”, which is defined as the practice of the filming or recording of an interview or attempted interview for broadcast, without any prior warning, and “surreptitious filming or recording”. In order to make a complaint alleging an infringement of privacy to Ofcom, certain criteria must first be met. (a) The complainant must have a direct interest in the subject matter of the complaint; (b) The matters complained of must not be the subject of legal proceedings in the UK, or be more appropriately resolved by legal proceedings in the UK; and (c) The complaint must not be frivolous. Should a complainant be seeking an interim injunction in respect of material that is to be imminently broadcast, this would preclude a complaint under the OBC. The OBC recognises that private acts may take place in public places, in effect, that a reasonable expectation of privacy may arise even in a public place. This expectation, which is consistent with ECtHR jurisprudence, is checked by limiting principles such as: (i) the nature of the information, act or condition in question; (ii) whether the complainant is a figure in the public eye (although, as we shall see, the ECtHR draws a distinction between public figures who have a political or public role or office, and those such as celebrities who do not); and (iii) whether the information is in the public domain. If the OBC is breached, Ofcom will publish an adjudication and explain the basis for its finding. If a broadcaster deliberately, seriously or repeatedly breaches the OBC, Ofcom may impose statutory sanctions against the broadcaster including fines and even in some cases revoke the broadcaster’s licence. The Press Complaints Commission The Press Complaints Commission (PCC) regulates print media and was set up in order to provide a route of redress in respect of complaints against the press. It is funded by the press and made up of members of the press and a majority of lay members appointed by an independent Appointment
80 <strong>Overlooked</strong>: Surveillance and personal privacy in modern Britain Commission. The PCC Code (the Code) addresses unwarranted infringements of privacy by the press. The Code is reviewed periodically by the Code Committee. All of the members of the Committee are drawn from the press. A breach of the Code that cannot satisfactorily be resolved between the parties through mediation may lead to the offending party being required to publish the PCC’s decision in its newspaper or magazine with due prominence. Many of the provisions of the Code refer to privacy. Paragraph 3 of the Code mirrors the wording of Article 8(1) of the Convention. Paragraph 3(ii) of the Code expressly states that it is “unacceptable” to photograph a person in a private place without obtaining consent from that person. A note to paragraph 3 provides that public property may be deemed a private place where there is a reasonable expectation of privacy. Paragraph 4 of the Code prohibits harassment, intimidation or persistent pursuit and provides that editors must ensure this principle is followed by their employees or others working for them and to be careful not to use “non-compliant material from other sources”. Paragraph 5 deals with intrusions into grief and shock, and paragraphs 6 and 7 address the protection of the privacy of children. Paragraph 10 provides that the press must not publish or seek to obtain material that has been acquired by using clandestine methods. It additionally states that obtaining information through misrepresentation and subterfuge can generally only be justified in the public interest and only if the material cannot be gathered by any other means. Paragraphs 3, 4, 6, 7 and 10 – among others – in the Code are subject to a public interest defence that may be utilised by the press. The relevant provision states that a public interest defence may subsist in the following non-exhaustive situations, namely: (a) detecting or exposing crime or serious impropriety; (b) protecting public health and safety; and (c) preventing the public from being misled by an action or statement of an individual or organisation. The press must show that the public interest has been in some way served by its actions; it is not for the complainant to prove that it was not. The PCC will, like Ofcom, consider to what extent the material is in already in the public domain. Notably, and not surprisingly for the press’ code, the Code also recognises that there is a public interest in freedom of expression as a free-standing concept, a privilege that is not accorded to an individual’s right of privacy. This notion of how private rights have traditionally been restricted by public interest arguments is explored further below. The National Union of Journalists Code of Conduct The National Union of Journalists’ Code of Conduct (NUJ Code) sets out the main principles of British and Irish journalism, to which journalists joining the NUJ must subscribe. Many of the provisions of the NUJ Code mirror those of the PCC Code. The NUJ Code contains similar provisions in respect of privacy, accuracy, clandestine methods of gathering information, children and intrusion into grief and shock. There is no provision relating to harassment. Under the NUJ Code, clandestine methods of gathering information, intrusions into private life and into grief or shock may be justified in the public interest, although the public interest itself is not defined. This Code is important because the ECtHR has repeatedly emphasised that Article 10 only protects journalists who comply with the ethics of journalism. The Code is likely to be regarded as a source of guidance on such ethics.
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Overlooked - Liberty

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