BBC cleared over secret filming at care home
A judge has revealed why he upheld the BBC’s right to secretly film in a care home for the elderly. The care home’s owner, BKM Ltd, had sought to block the broadcast of a programme entitled “Who Cares in Wales?” as part of the BBC Wales Week in Week Out series.
It centred on BKM’s Glyndwr Nursing Home in Ystrad Rhondda, and included film taken secretly by undercover reporter Kirsty Hemming which, the BBC said, highlighted various failures in the care of residents, staffing levels, and other issues.
BKM argued that the programme should be blocked because broadcasting it would be an infringement of the right to respect for privacy of the residents guaranteed by Article 8 of the European Convention on Human Rights.
The clandestine filming itself was an invasion of privacy and offensive to the old people’s dignity, it said.
The BBC argued that it had the right to freedom of expression under Article 10 of the convention, and that in this case its rights outweighed the residents’ privacy rights as steps would be taken to ensure that none of the home’s residents was identifiable.
It was also in the public interest to allow the broadcast, as the general area of care in residential homes was of legitimate public interest, as were the failure of regulation of such homes – the establishment in question had been criticised in previous regulatory reports – and the manner in which this particular home still fell short of proper standards.
Mr Justice Mann rejected the application for the injunction on November 25 – the day the programme was to be broadcast – giving short reasons for his decision and, after BKM said it would not appeal, said he would hand his detailed reasons down later, which he has now done.
He said he had proceeded on the basis, which the BBC had accepted for the purposes of the application, that BKM’s application was intended to protect the privacy rights of residents at its home.
But he went on: “This is not wholly satisfactory. There are elements in the evidence, and elements in the way that the case is put, which indicate that BKM is (understandably) sensitive to its own reputational position, and concerned about the effect on its business.
“I sometimes got the impression that that was a significant underlying factor to the decision to bring this application. BKM clearly has a potential conflict of interest. Its commercial interests lie in playing down the allegations, and not having them broadcast.”
One objection raised by BKM was that neither it nor the court had seen the BBC’s programme.
But Mr Justice Mann said: “I cannot draw any inferences adverse to the BBC about that for at least three reasons. First, I was told, and I accept, that the material is not finalised yet, so to that extent there is nothing yet to see. This is therefore not a case in which it would be right to draw inferences against someone who has withheld some material adverse to its case.
“Second, it is the usual practice of the media not to disclose material in advance of publication unless it wants to, and the courts have respected that conduct – see eg Re Roddy ( EMLR 127 at paragraph 88).
“This is doubtless partly as a matter of principle, and partly because an evaluation of the material might require a judge to perform an editorial function, which is not desirable.
“Third, it is not clear to me what adverse inference could be justifiable. The claimants have brought this application on the factual basis that there will be broadcasting of material which will or might infringe rights to privacy. That is accepted by the BBC for the purposes of the present argument.
“The justification lies elsewhere, in the balancing exercise, on the assumption that infringing material will be broadcast. I do not see what proper adverse inference about that (or any other inference, come to that) can be drawn from a failure to disclose the material in advance. I certainly cannot draw the inference that the BBC knows that the material will be improperly broadcast.”
The real issue was whether the clandestine filming was justified in the first place, and whether broadcasting its fruits was justified.
“Since there is a privacy code (if not two) in place, then those matters have to be justified in the light of those codes as well as in the light of more general legal considerations.
“Those codes provide, in essence (and reducing them to their most relevant points), that the use of clandestine techniques and their fruit is not to be lightly undertaken. The matter has to be sufficiently serious to justify it, and it should not be done if there are other means available to achieve the same ends,” the judge said.
Doing what he could with the material available he had concluded that there were serious factors which justified or out-balanced any infringement of privacy rights – standards in care homes, and a regulator’s ability to maintain them, were firmly matters of public interest, and so, potentially, was the way in which the care home was run, if it was run badly.