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England and Wales Court of Appeal (Civil Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> British Broadcasting Corp, R (on the application of) v Broadcasting Standards Commission [2000] EWCA Civ 116 (6 April 2000)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/116.html
Cite as: [2001] BCC 432, [2000] UKHRR 624, [2001] 1 BCLC 244, [2000] EMLR 587, [2001] QB 885, [2000] EWCA Civ 116, [2000] HRLR 374, [2000] 3 WLR 1327, [2000] COD 322, [2000] 3 All ER 989

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Case No: QBCOF 1999/0779/C

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISON
(MR JUSTICE FORBES)
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 6 April 2000

B e f o r e :
THE MASTER OF THE ROLLS
LADY JUSTICE HALE
and
LORD MUSTILL
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REGINA


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BROADCASTING STANDARDS COMMISSION EX PARTE BRITISH BROADCASTING CORP

Appellant
Respondent


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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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The Hon Michael Beloff QC and Mr Rabinder Singh (instructed by Gregory Rowcliffe & Milners, London WC1R 4BY for the Appellant)
Mr David Pannick QC and Miss Kate Gallafent (instructed by The BBC Litigation Dept., London W12 7TS for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©


Lord Woolf MR :
1. This appeal concerns a decision of the Broadcasting Standards Commission. The Broadcasting Act 1996 established the Commission (referred to in the Act (s.106) and in this judgment as "the BSC"). The Act gave the BSC a number of duties. The duties which are relevant to this appeal are :
(i) to draw up, and from time to time review, a code giving guidance as to principles to be observed, and practices to be followed, in connection with the avoidance of :
"(a) unjust or unfair treatment in programmes to which this section applies, or
(b) unwarranted infringement of privacy in, or in connection with the obtaining of material included in, such programmes" (s.107(1); emphasis added).
(ii) to publish the code (s.107(3)).
(iii) to consult various bodies including the BBC (s.107(4) and (5)).
(iv) to draw up a code giving guidance as to the practice to be followed in sensitive areas, including violence, sexual conduct and standards of taste and decency (s.108).
(v) to monitor broadcasting standards to which s.108 applies with a view to making reports (s.109).
(vi) "to consider and adjudicate on complaints which are made to them in accordance with ss.111 and 114 and relate - (a) to unjust or unfair treatment in programmes to which s.107 applies, or (b) unwarranted infringement of privacy in, or in connection with the obtaining of material included in,such programmes" (s.110(1)).
(vii) to consider and make findings on complaints which are made to them in accordance with ss.113 and 114 and relate to the portrayal of violence or sexual conduct in progammes or alleged failures of programmes to attain standards of taste and decency (s.110(2)).
(viii) when considering, or adjudicating or making findings on complaints to take into account any relevant provisions of the appropriate code".
2. In the performance of the duties to which I have referred, on 5 May 1998 the BSC upheld a complaint of 18 June 1997 by DSG Retail Limited ("Dixons") that secret filming by the BBC was an unwarranted infringement of Dixons' privacy in connection with the obtaining of material included in a BBC programme.
3. The BBC contend that the decision of the BSC was ultra vires and unlawful. The BBC therefore made an application for judicial review. They relied on three grounds in their form 86A :
(i) That a company cannot enjoy a right to privacy.
(ii) That privacy cannot apply to the filming of events in the place to which the public has access.
(iii) That the decision of the BSC is unreasonable or fails to have regard to the relevant factors.
4. By a judgment given on 9 July 1999, Forbes J granted the BBC's application for judicial review and quashed the decision of the BSC. He granted the BSC permission to appeal against his decision. He did so because his decision raises two issues. First, whether a body corporate such as Dixons is able as a matter of law to bring a complaint for infringement of its own privacy under ss.110 and 111 of the Act and, second, whether secret filming in a place to which the public have access can amount to an infringement of privacy unless what is filmed itself has a private element (which did not exist in this case). The judge rejected an additional contention that the decision of the BSC was "Wednesbury" unreasonable. The BBC have not challenged the last part of the decision. This appeal relates to the reasoning of the judge which resulted in his quashing the decision of the BSC.
5. The issues as to privacy which caused the judge to come to his conclusions are ones of general interest and importance. They are of particular interest to the organisation called Liberty. With the parties' consent and by order of Schiemann LJ made on 26 January 2000, Liberty was granted permission to intervene on the appeal. Subsequently, Liberty was confined by the Court to making written submissions. The submissions which were made focused on whether making a secret film of staff working at Dixons' stores so lacked an element of seclusion or privacy that it could not infringe a right to privacy. As to this Liberty submitted that the jurisprudence derived from the European Convention of Human Rights and the Canadian Charter of Rights and Freedom are of assistance. Summarising Liberty's submissions, they amount to a contention that to film a person without his consent is in itself a breach of the right to privacy because it interferes with the idea of personal autonomy or control every person has over his own identity. Here reliance was placed upon Les Editions Vice-Versa v Aubrey [1998] 5 BHRC 437. Liberty argues that the right to privacy, as is the case with other human rights, should be given a broad and generous construction. It contends that attention should be focused on the justification for interfering with a right.
6. Mr Pannick QC, on behalf of the BBC, in his helpful oral submissions urged this court to uphold the decision of Mr Justice Forbes and to an extent reflected the submissions of Liberty. He submitted that, in order to understand the ambit of privacy, the approach to privacy in human rights jurisprudence and the constitutions of other jurisdictions is of critical importance in determining :
(i) Whether a company or body corporate enjoys a right to privacy;
(ii) Whether it is an infringement of a right to privacy to film secretly in a place to which the public has free access when the event or events filmed are not inherently private in any respect. (It will be noted that the second issue as identified by Mr Pannick both before this court and before Forbes J is more restricted than was set out in the form 86A. In the form it was suggested that privacy could not ever be involved if the filming was of events in a place to which the public has access.)
7. In general Forbes J accepted Mr Pannick's approach. He concluded that "on the present state of the authorities, ... Article 8 of the ECHR is not designed or intended to protect corporations or companies. ... There is an obvious overlap between Articles 8 and 9 of the Convention, both of which are designed to protect various aspects of human personality."
8. Forbes J concluded that it would be very surprising if Parliament had intended "a wider concept of privacy in the 1996 Act" than that expression had under Article 8 of the ECHR. As the meaning of privacy in the 1996 Act was ambiguous, in accordance with the decision in Ex Parte Brind [1991] 1 AC 696, it was appropriate to interpret it in accordance with the ECHR. Accordingly its meaning should be restricted "to human individuals and does not extend to corporations". As to the second issue, Forbes J took the view that the various transactions involved no element of intrusion on "seclusion". Accordingly, in his judgment there could be:
"No infringement of privacy by the mere fact of surreptitious filming of an event in public if, as in the present case, there is no element of seclusion in the event being filmed so as to attract the necessary quality or aspect of privacy to that event."
9. In his equally helpful submissions Mr Beloff QC, on behalf of the Commission, attacked each of the building blocks on which Mr Pannick had based his submissions and the judge his decision. Mr Beloff regarded the language of the 1996 Act as being explicitly in his favour. There was no need to have regard to any external aid to construction. If there was, in accordance with Pepper v Hart [1993] AC 593, it would be appropriate to look at the legislative history and, when this was done, in the case of both Houses of Parliament it was clear that companies were intended to be entitled to complain about infringements of their privacy. He contended that the jurisprudence of other jurisdictions was by no means unanimous and, even in relation to the ECHR, the jurisprudence should be regarded as either supporting his contentions or as at least leaving the question of whether a company can have a right to privacy open. Both Mr Pannick and Mr Beloff relied on the writings of distinguished academics on this subject in this country and abroad.
10. For the purpose of this judgment, for the reasons which I will seek to explain, although this material provides a helpful background to reaching my decision in this case, it does not in my judgment provide the answer to the issues which I have to determine. I therefore propose to do no more than to refer specifically to the opinion of Advocate General Mishco in cases 46/87 and 227/88 Hoechst AG v Commission [1989] ECR 2859 at pp. 2884-2896. He conducts a wide ranging survey of the law of Member States and indicates that at the time of his opinion those Member States do not speak with one voice as to whether concepts such as privacy are capable of applying to commercial enterprises but finds that "... a general trend is discernable in the national legal systems towards the assimilation of business premises to a home".
The Proper Approach to the Interpretation of the 1996 Act
11. As the BSC's title makes clear, they are concerned with trying to achieve proper standards of conduct by the section of the media which falls within its jurisdiction. The question of what are proper standards is pitted with issues of great sensitivity and difficulty. It is an area involving tensions between ensuring that the media has the necessary freedom to perform its important role while at the same time ensuring that that role does not inappropriately trespass on the interests of others. While protecting the position of the media, the BSC are also required to discourage unjust or unfair treatment or unwarranted infringements of privacy, as well as maintaining broadcasting standards generally, including standards of taste and decency.
12. This is a field in which it is almost impossible and certainly undesirable to draft legislation which prescribes in detail what conduct is or is not acceptable. Instead of seeking to undertake that task, the 1996 Act established the BSC and then placed duties upon the BSC. The task of the BSC is, after carrying out consultation, to draw up codes of conduct which are intended to set out the appropriate standards to which the BBC should adhere. Subject to consultation, the contents of the code are the responsibility of the BSC. Compliance with the codes is not obligatory as a matter of law. If the BBC contravene the code it is not acting unlawfully. The code does, however, provide a statement of what the BSC regard as being acceptable and unacceptable behaviour. The protection which the BSC can give to the individual is limited. Having adjudicated on a complaint, the BSC's powers are restricted to giving directions requiring the publication of a summary of the complaints, the BSC's findings and, in the case of a standards complaint, the observations of the BSC.
13. Although the Act draws a clear distinction between a standards complaint and a fairness complaint, as a survey of the legislation indicates, the maintaining of appropriate standards of fairness and standards of programmes is the responsibility of the BSC. It does this within the statutory structure which the Act provides. What is important is that the BSC are not concerned with establishing legal rights, human or otherwise. All they are able to provide to those who wish to make a complaint is an avenue for doing so and, if the complaint is upheld, the right to such publicity (if any) of the fact that the complaint has been upheld as the BSC consider appropriate (under s.119 of the Act).
14. Understandably Parliament has given to the BSC a broad licence as to how they exercise their judgment and discretion. Working in co-operation with the media the BSC will develop an expertise which makes them particularly appropriate to perform their role. Who has the necessary independence and how long a person should remain a member of the BSC are obviously matters of importance and so there are detailed provisions as to this in Schedule 3 to the Act. The nature of its work and its membership are important when considering the role of the courts in relation to adjudications by the BSC. What constitutes an infringement of privacy or bad taste or a failure to conform to proper standards of decency is very much a matter of personal judgment. This is not an area on which the courts are well equipped to adjudicate. In relation to privacy, both the literature and the jurisprudence show an understandable reluctance to propose a comprehensive definition. As Mr Beloff submitted, we are here in an area involving open textured concepts. An interference with privacy is not even like the elephant, of which it can be said it is at least easy to recognise if not define. The meaning of privacy can be influenced by the context in which it appears.
15. The matters to which I have referred do not mean that the court has no role in relation to the activities of the BSC. What it does mean is the role is limited. The BSC are the successor of the Broadcasting Complaints Commission. In R v Broadcasting Complaints Commission ex parte Granada Television Limited [1995] EMLR 163 the court had to consider a contention that the Commission could not make a finding that there had been an infringement of privacy since (1) the matters published were already in the public domain and (2) the matters published did not relate to the complainants but to their children. In giving a judgment with which the other members of the court agreed, Balcombe LJ (at p.167) drew attention to the fact that the majority of the Younger Committee on Privacy accepted the conclusion of the "Justice" Committee on Privacy that the concept of privacy could not be satisfactorily defined (Command 5012 of 1972 paras. 57-61 and Appendix K) and that the subsequent Calcutt Committee on Privacy was of the same view (Command 1102 of 1990 paras. 31.1/3.8). He also referred to the well known approach of Lord Radcliff in Edwards v Bairstow [1956] AC 14 at p.33 and then stated (at p.168) :
"Unless on no interpretation of the word "privacy" could the finding of the BCC be justified ..., there is no basis for the grant of judicial review."
He added (at p.168) :
"Whether in such a case there is an unwarranted infringement of privacy is a matter of degree and as such for the decision of the BSC with which the Court cannot interfere."
16. I would also refer to R v Monopolies and Mergers Commission & Anr ex parte South Yorkshire Transport Limited [1993] 1 WLR 23 at pp.29 and 32H and R v The Radio Authority ex parte Bull [1998] QB 294 at pp. 304-305. The BSC, as part of their role in drawing up the code and in making adjudications, have a degree of latitude in determining the situations which are within their remit so that it has statutory authority for laying down standards with which the media are required to comply. So as long as the approach which the BSC adopt is one to which, in their statutory context, the words infringement of privacy are capable of applying, then the Courts should not interfere. It is only if an approach to "infringement of privacy" by the BSC goes beyond the area of tolerance that the Courts can intervene. There will be situations when it will be obvious that what has happened is or is not within the remit of the BSC. There will be other situations which fall within the grey area where it will be very much a matter of judgment whether they fall within the remit of BSC or not. In the latter situations, having regard to the role the legislation gives to the BSC, the answer as to the scope of its remit is that it is something for the BSC to determine and not the Courts. However, if the BSC stray beyond the grey area into the red area, the Court is required to intervene and give its decision that the case does not fall within the remit of the BSC.
17. In a difficult case, and this is a difficult case, it is perfectly appropriate to have regard to the jurisprudence of the European Court of Human Rights ("CHR"), the European Court of Justice and of other countries. However, caution needs to be exercised. The context in which a word such as privacy is used can be important. I have sought to identify the context here, which is not the same as that under the ECHR. As it happens, I do not regard the position on the issues with which we are concerned on this appeal to have been clearly determined by the CHR in a way which points in either party's favour under Article 8 of the ECHR. Both parties relied on the CHR's decision in Niemietz v Germany [1992] 16 EHRR 97. But that case is not decisive as to the approach to Article 8 of the ECHR on the issues with which we are concerned. Furthermore, as appears from its language, Article 8 is concerned with privacy in a different context than under the Act. It is the "right to respect for his private and family life, his home and his correspondence" with which Article 8 ECHR is concerned. To construe a statute so that it does not provide less than the protection given by the ECHR can be appropriate, but I would resist the use of the ECHR to cut down the protection which a statute would otherwise provide. Section 3 of the Human Rights Act 1998, when it comes into force, will require courts, "so far as it is possible to do so", to construe legislation so that it will have an effect which is compatible with Convention rights. Legislation may well be compatible with Convention rights if it provides greater protection than is provided by Convention rights.
18. In drawing attention to this aspect of Mr Pannick's argument, based on drawing an analogy with Article 8, I have not lost sight of the importance of not restricting the BBC's right to freedom of expression under Article 10 of the Convention. This risk is, however, accommodated by the Act since, in relation to the BSC's jurisdiction in respect of complaints, the word privacy does not stand alone. It is on complaints as to an "unwarranted infringement of privacy" that the BSC adjudicate. The requirement that the infringement has to be unwarranted should be approached in a manner which prevents any inappropriate chilling of the broadcasting company's Article 10 rights. In addition it is to be noted that Article 10(2) makes the right to freedom of expression subject to a number of other considerations including the protection of health or morals, and in particular the "reputation or rights of others", and information received in confidence. These are similar considerations to those which the BSC are required to protect.
19. Having drawn attention to those general considerations, I turn first to the facts which gave rise to Dixon's complaint, then to the decision of the BSC on the complaint and finally our conclusions as to the specific issues raised on this appeal.
The Facts
20. Prior to the broadcast by the BBC of an edition of a consumer programme, "Watchdog" on 27 March 1997 the programme makers secretly filmed transactions in Dixons' stores as part of an investigation into the selling of secondhand goods as new. Dixons were told by the programme's Assistant Producer that there had been the secret filming of twelve purchases in Dixons' stores. Dixons had then been asked to respond to allegations that it had sold secondhand goods as if they were new. The secret filming did not in fact reveal evidence of misselling and so the secret filming was not used in the programme.
21. In the past Dixons had been successfully prosecuted on ten occasions for describing secondhand goods as new and on one occasion, for misdescribing a "manager's special". However, the convictions had all related to transactions dated prior to May 1996 and, although there have been complaints since that time, it was Dixons' contention that the complaints related to the earlier period. Dixons argued that if the programme makers had carried out basic research they would have discovered that Dixons' new system was preventing goods being misdescribed, without the need for secret filming. Dixons also said that, on two previous occasions, complaints to the BSC had been made with regard to Watchdog filming secretly in its stores. There had been an adjudication on 5 September 1996 which had found "a degree of unwarranted infringement of privacy" and there had been a subsequent secret filming in December 1996. Dixons argued that the latest filming had been a fishing expedition and that the behaviour had been an unwarranted infringement of Dixons' privacy.
22. Their code, which the BSC had to take into account when reaching that decision stated:
"The use of hidden microphones and cameras
The use of secret recording should only be considered when it is necessary to the credibility and authenticity of the story, as the use of hidden recording techniques can be unfair to those recorded as well as infringe their privacy. In seeking to determine whether an infringement of privacy is warranted, the Commission will consider the following guiding principles.
1. Normally broadcasters on location should operate only in public where they can be seen. Where recording does take place secretly in public places, the words or images recorded should serve an overriding public interest to justify:

The decision to gather the material;
The actual recording;
The broadcast."

23. The BBC had not taken exception to this section of the code. This is not surprising because their own internal guidance is in similar terms. That guidance points out that "the use of concealed recording equipment" is "highly controversial" and that "it is essential that we operate within a framework which respects people's rights to privacy".
The Decision of the BSC
24. In their decision the BSC explain that they remain of the view that they can consider complaints where there has been an unwarranted infringement of privacy when the complaint is made by incorporated bodies. In addition they state that they do not accept that because the public had access to the premises, staff and transactions filmed, Dixons' privacy was not infringed. The BSC considered it "unfortunate" that the BBC regarded the secret film "as basic research". The BSC were concerned as to the view expressed by the BBC "that secret filming was simply a more accurate and reliable method of gathering evidence". The BSC were not convinced by the argument "that the use of hidden cameras was no more of an infringement of privacy than a journalist making the same enquiries without recording equipment".
25. Having come to the conclusion that the "secret filming in Dixons' stores, of Dixons' staff infringed Dixons' privacy in the making of the programme" the BSC recognised the valuable role that programmes such as Watchdog fulfill and regarded it as being in the public interest to investigate the sale of used goods by Dixons. Their criticism of the BBC was, however, that they did not conduct further research before undertaking the secret filming. They pointed out that the BBC had been informed by Dixons of their improved procedures and the BSC regarded this as indicating a need for further research before the further secret filming.
26. The BSC therefore found "that the programme makers did not have sufficient evidence to warrant the decision to film secretly in Dixons' stores" and found "that the infringement of Dixons' privacy was unwarranted". Lady Howe, the Chairman of the BSC and the Chairman of the panel which made the adjudication, provided an affidavit. Paragraph 11 of that affidavit is strongly relied on by Mr Pannick and is in these terms:
"We took the Code into account when deciding that there had been an infringement of Dixons' privacy in the particular circumstances of this case when the BBC secretly filmed in a Dixons' store, without Dixons' consent, Dixons' employees engaged in carrying out their duties on behalf of the company, including giving advice and completing sale transactions. We did not confuse the privacy of Dixons with the privacy of its staff. I take the BBC's criticism to refer to the sentence beginning at the foot of page 7 of the Adjudication, namely: "The Commission considers that the secret filming in Dixons' stores, of Dixons' staff infringed Dixons' privacy ..." We were not there addressing our minds to any possible infringement of the privacy of individual members of Dixons' staff but rather took the view that secret filming of a company's agents going about the company's business was an infringement of the company's privacy."
27. In view of the terms of that paragraph of the affidavit, Mr Pannick rightly submits that Dixons' complaint was not regarded by the BSC as being made on behalf of Dixons' staff. It is made on their own part and there is no reliance on any distress to any particular member of their staff. Mr Pannick submits that the BSC's approach is wrong in principle because it focused on the fact of surreptitious filming rather than on the nature of the act which is filmed. The BSC had failed to identify the respect in which the filming was private. There was nothing private or confidential, secluded or secret which was the subject matter of the filming.
My Conclusions
28. I turn to the two issues.
A. Under the Act, can a company be the subject of a complaint of unwarranted interference with its privacy?
29. There is no dispute that a company can make a complaint. This is categorically stated in s.111(1) of the Act. S.111(1) provides :
"(a) a fairness complaint may be made by an individual or a body of persons whether incorporated or not, but subject to sub-section (2), shall not be entertained by the BSC unless made by the person affected or by a person authorised by him to make the complaint for him."
30. A "fairness complaint" is defined as meaning a complaint of any of the matters referred to in s.110(1) and so it applies to complaints of both unjust or unfair treatment and unwarranted infringement of privacy.
31. Mr Pannick accepts that if the complaint had been by Dixons on behalf of their staff, the BSC would have had jurisdiction. However, having regard to the terms of Lady Howe's affidavit, he says that was not what happened here. He considers that s.111(1) does no more than identify who is entitled to make a complaint. It provides no help as to whether a company can make a complaint on its own behalf. This is a very restricted interpretation of s.111(1).
32. Undoubtedly a company can be unfairly treated. If unfairness of this sort can be the subject of a complaint to the BSC by a company, I consider that this is a strong indication that a company can also make a complaint about the infringement of its privacy. I can see nothing in the language of the Act which would prevent a company complaining of unfairness.
33. 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 on its privacy. It could not possibly be said that to hold such actions an intrusion of privacy conflicts with the ECHR.
B. Was there an unwarranted infringement of Dixons' privacy?
34. Accordingly, to provide no protection under the Act for activities of a company of this nature would leave a company at a disadvantage under legislation designed to encourage and achieve proper standards of conduct. This is most unlikely to be what Parliament intended. Without therefore giving any indication of my view as to the proper application of Article 8 of the ECHR to companies, I consider that the BSC had jurisdiction to determine the complaint made by Dixons. The Act extends to unwarranted interference with the privacy of a company.
35. If there was an interference with Dixons' privacy, then it is not disputed that it is unwarranted. It is the practice of the BSC to consider first whether there is any infringement of privacy and then, only if there is such an infringement, to decide whether or not it is unwarranted. This practice of adopting a two stage approach has advantages. There is no need to consider whether an alleged interference is warranted if the BSC come to the conclusion that there is no infringement. However, it is important to recognise that the two stages are closely linked. If the infringement is limited, it will be much easier to establish that it is warranted. If the infringement is gross, justification will be more difficult to establish.
36. The approach of the BSC to secret filming is that it requires some justification. It should not be done at will. The passages cited from their decision makes clear that the BSC considered that the BBC had fallen down on proper standards because they were secretly filming without taking the precaution of seeing whether there is any justification for doing this. Their decision makes it clear that their approach was that a company and an individual can properly object to "cavalier" secret filming at the premises of a company as well as those of a private individual. It may be a place to which the public have access, but the fact that the filming will also involve the filming of the public may make it more of an infringement of the company's interests than filming at a place where the public do not have access. On the BSC's approach the company has its own interests which can warrant protection as to the way its staff conduct themselves. On its own behalf it can reasonably object to its employees being filmed secretly without cause.
37. Mr Pannick submits that the fact that the filming was secret does not add anything to the filming. I disagree. The fact that it is clandestine can add an additional ingredient. Both the code and the BBC's own guidance recognise that clandestine filming is regarded as objectionable. The fact that it is secret prevents those who are being filmed from taking any action to prevent what they are doing being filmed. In this case, it is reasonably clear that, if Dixons had been aware of the filming, they would have regarded it as objectionable. The filming was on their property and although the public were invited to the premises the invitation was not in relation to secret filming.
38. This is very much a case in which the BSC, in giving that decision, were performing that role of setting standards of what is acceptable and what is not acceptable conduct. This was in an area where the courts, for reasons already explained, should be particularly hesitant about intervening. I would not interfere with the decision of the BSC on this secret filming. The decision was well within the BSC's discretion. I do emphasise that the degree of infringement was limited and that therefore the justification which would be required on the part of the BBC to avoid an adverse finding would be very modest. However, I am not concerned with adequacy of the justification relied upon by the BBC. The BBC accept the judges' decision that the adjudication of the BSC that the filming was unwarranted is not open to objection.
39. I would allow the appeal and restore the adjudication of the BSC.
LADY JUSTICE HALE:
40. I agree that, for the reasons given by the Master of the Rolls, this appeal should be allowed. However, lest it be thought that this case might have a wider relevance than the present context, I wish to emphasise the considerations which have been most persuasive with me.
41. The provisions of the Act are quite clear. A 'body of persons, whether incorporated or not' has the right to make a fairness complaint: s.111(1). A fairness complaint is a complaint in respect of any of the matters in s.110(1)(a) [unjust or unfair treatment] and (b) [unwarranted infringement of privacy]: s.110(4). Complaints can only be made by or on behalf of a 'person affected': s.111(1). The 'person affected' is defined in relation to infringements of privacy as 'a person whose privacy was infringed': s.130(1). The words 'where the person affected is an individual . . . ' in s.111(2) and (3) clearly contemplate that a person affected may not be an individual. This is not surprising in the light of the well known provision in Schedule 1 to the Interpretation Act 1978 that '"Person" includes a body of persons corporate or incorporate'. It is, I acknowledge, surprising that s.111(2) and (3) also refer to a 'person or body', but had the draftsman intended to confine a 'person affected' to an individual he could and, in my view, would have done so.
42. The Act's concept is 'privacy'. The ECHR concept is 'respect for his private and family life, his home and his correspondence' (art 8(1)). While 'private life' may bring with it certain nuances it is not obvious that 'privacy' should always do so. Privacy is a difficult word for which to find synonyms (let alone to define by examples of interference, as the Reports cited to us acknowledge) but the Concise Oxford Dictionary includes 'avoidance of publicity' and it obviously has some connection with being or keeping 'private'. There are many things which companies may (legitimately or illegitimately) wish to keep private, including their property, their meetings, and their correspondence. There are still more about which they may (legitimately or illegitimately) wish to avoid publicity.
43. I accept that it is open to the BSC to hold that secret filming of an individual for potential use in broadcasting is in itself an infringement of that individual's privacy (although it may well be warranted). Notions of what an individual might or might want to be kept 'private', 'secret' or 'secluded' are subjective to that individual. Someone who had declared publicly that he would 'never be seen dead' in Dixons, or who did not wish it to be known that he was buying a present for his wife there, might have excellent reasons for wanting to keep secret a visit to Dixons but be quite relaxed about a visit to an Ann Summers shop. For others, the position would be the reverse. The infringement consists in depriving the person filmed of the possibility of refusing consent. If this is so for an individual, I cannot see why it should not also be capable of being so for a company. The company will have its own reasons (good or bad) for wanting or not wanting to object and the secrecy of the filming has deprived it of the opportunity to do so.
44. I also attach particular weight to the context, which is not only the secret filming without consent but also the potential use in the mass media without consent. Furthermore, we are not talking about legal rights but broadcasting standards. If there is a good reason for the infringement then it will not be unwarranted. All this seems to me to justify a wider view of the ambit of privacy than might be appropriate in some other contexts. There may well be contexts in which the concept should be limited to human beings, whose very humanity is defined by their own particular consciousness of identity and individuality, their own wishes and their feelings. But that debate is for another day.
LORD MUSTILL :
45. I concur in the opinion that this appeal should be allowed, but wish to add some words of caution on what I believe to be the most difficult aspect, which is whether the concept of an invasion of privacy can have meaning when applied to a corporate body.
46. Although the expression "fairness complaint" appears to echo the words "unjust or unfair treatment" in section 110(1)(a) of the Act, there is no doubt that a complaint may also concern an unwarranted infringement of privacy: section 110(4) says so. Moreover, of the two capacities in which a person may feature on the complaining side of the procedure-namely, as "complainant" and as the "person affected" (or both)- it is equally clear that a corporate body may act as complainant: again, section 111(1) says so. This presents no conceptual problems, for a corporate employer may wish to present a complaint on behalf of an individual employee, just as much for an invasion of privacy as for unfairness. Nor is there any difficulty where a body puts forward a complaint on its own behalf under section 110(1)(a), for a corporation as well as an individual may be unfairly treated. The Act does not, however, explicitly address the position under section 110(1)(b). Can a company say that it is aggrieved by an invasion of its own privacy? As a matter of ordinary language I would not have thought so. The context in which the question must be asked for present purposes is, however, special in two respects. First, in terms of textual analysis, conclusions may be drawn from the terminology of section 111, where the legislature refers both to "a person" and "an individual", which suggests that the former is intended to embrace both a corporate and a natural "person". The point is however weakened by the use in sections 111(2) and (3) of the expression "person or body", a usage which assumes that a body is not a person. For my part I am not confident that the language of Part V is sufficiently consistent, on its own, to force on the concept of privacy a meaning which it would not otherwise have. What does, however, enable me to concur in the application of the complaints procedure to the present case is the purpose of the Act. The task of the Commission is not to declare and enforce sharp-edged legal rights but rather to establish and by admonishment uphold general standards of decent behaviour. A regime of such breadth could well seem incomplete if it were to leave unremarked the type of conduct which, if aimed at an individual, would have been within its purview, simply on the ground that the victim was a company. I can therefore accept an expanded reading of privacy for this special purpose, enabling the Commission to take notice of acts which, if the victim had been a natural person, would clearly be within its remit.
47. Having reached this far there is in my view no problem with the remaining issues. To make its powers useful in what is essentially an area of personal judgment and good taste the Commission must have been intended to have a wide margin of appreciation, and I have no doubt that the margin was ample to cover the present case.
48. I do, however, wish to emphasise the degree to which this conclusion is dependent on the language and purpose of this particular statute, for in general I find the concept of a company's privacy hard to grasp. To my mind the privacy of a human being denotes at the same time the personal "space" in which the individual is free to be itself, and also the carapace, or shell, or umbrella, or whatever other metaphor is preferred, which protects that space from intrusion. An infringement of privacy is an affront to the personality, which is damaged both by the violation and by the demonstration that the personal space is not inviolate. The concept is hard indeed to define, but if this gives something of its flavour I do not see how it can apply to an impersonal corporate body, which has no sensitivities to wound, and no selfhood to protect.
49. There will, it is true, be many occasions where grounds for complaint maintainable by a company will be of the same kind as those which could be presented by an individual as a breach of privacy. For example the clandestine copying of business documents would be actionable by a company and an individual alike as civil wrongs, amounting to a breach of confidentiality copyright and the like. But privacy and confidentiality are not the same. For example, the reading and copying of personal diaries, letters to relatives or lovers, poems and so on could ground not only an allegation of tortious conduct but also an additional complaint that the privacy of the writer and perhaps also of the recipient have been intruded upon. Such conduct is specially objectionable, not because legal rights have been infringed but because of the insult done to the person as a person. No such complaint would, I believe, be feasible when made by a company, not for the obvious reason that a corporation does not create documents of this kind, but because an intrusion into such matters has an extra dimension, in the shape of the damage done to the sensibilities of a human-being by exposing to strangers the workings of his or her inward feelings, emotions, fears and beliefs- a damage which an artificial "person", having no sensibilities, cannot be made to suffer. A company can have secrets, can have things which should be kept confidential, but I see this as different from the essentially human and personal concept of privacy.
50. Further than this it would be inappropriate to go. A general appreciation of privacy is not called for by the present appeal. My purpose is simply to emphasise that when it becomes necessary to consider the question in the much wider context of human rights, as it surely will, there may well be room for more than one opinion about what the concept entails.
Order: Appeal allowed with costs. Leave to appeal to House of Lords refused.
(Order does not form part of the approved judgment)


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