This was the finding of the court in the recently decided case of BKM Ltd v British Broadcasting Corporation [2009] EWHC 3151 (Ch) which can be accessedhere.

The facts of the case are that the BBC sent an undercover reporter into a care home for the elderly and then claimed to have identified a number of alleged serious failings. They proposed to broadcast the film and the care home sought an injunction to prevent the BBC from doing so, claiming that the filming was an infringement of the rights to privacy and family life of the residents in the home under Article 8 of the European Convention on Human Rights 1950 (ECHR).

The High Court found that although non-consensual filming was capable of being a very serious infringement of the residents’ right to privacy and Article 8 of ECHR was engaged, the BBC also had its own rights to freedom of expression under Article 10 of ECHR and these rights had to be balanced against one another. The real issue was whether clandestine filming had been justified in the first place. In this case, there were serious facts which justified or out-weighed any infringement of privacy rights. The standard in care homes and the ability of the regulator to maintain them are matters firmly in the public interest. It could not be said any portrayal of the residents would give rise to a sufficiently serious infringement of privacy rights to outweigh any public interest justification coupled with Article 10 rights.