|
Стр. 3
никаких требований в этом отношении не было заявлено.
Власти Соединенного Королевства отклонили требования заявителя,
утверждая, что эти расходы было необязательно нести в ходе
рассмотрения дела.
125. Заявитель также требовал 11563,54 фунтов стерлингов в
возмещение расходов, понесенных до рассмотрения дела в Европейском
суде на представление документов, предусмотренных статьей 41
Конвенции. Эту работу выполнял солиситор, юрист (по почасовым
тарифам, указанным выше) и королевский адвокат. Была предоставлена
подробная ведомость издержек по делу, которая отражала время,
потраченное на каждой стадии, расходы на оплату услуг, включая
гонорар королевского адвоката (в размере 1727,25 фунтов
стерлингов). Власти Соединенного Королевства утверждали, что
размер требуемых расходов должен быть уменьшен.
126. Наконец, заявитель требовал приблизительно 19000 фунтов
стерлингов (включая НДС) за "заранее уплаченные расходы" на
рассмотрение дела после стадии установления приемлемости и до
вынесения Постановления по настоящему делу. Власти Соединенного
Королевства заявили, что это часть его требований была слишком
абстрактной и что любые будущие расходы необходимо учитывать,
только если они уже понесены.
127. Европейский суд напомнил, что только законные судебные
расходы и издержки, действительно и вынужденно понесенные
возмещаются в разумных пределах в соответствии со статьей 41
Конвенции (см. Постановление Европейского суда по делу "Лустиг-
Прин и Беккетт против Соединенного Королевства" (Lustig-Prean and
Beckett v. United Kingdom) от 25 июля 2000 г. (справедливая
компенсация), N 31417/96 и 32377/96, з 32). Далее Европейский суд
напомнил, что, что касается расходов в национальных судах, то они
могут быть возмещены, если они были понесены заявителем с целью
попытаться предотвратить нарушение, установленное Европейским
судом или получить компенсацию за это (см. Постановление
Европейского суда по делу "Ле Конт, Ван Левен и Де Мейер против
Бельгии" (Le Compte, Van Leuven and De Meyere v. Belgium) от 18
октября 1982 г., Series A, N 54, з 17). Расходы, понесенные в
национальных судах, должны возмещаться, как сказано в з 30 - 33
упоминавшегося выше Постановления по делу "Лустиг-Прин и Беккетт
против Соединенного Королевства" (справедливая компенсация).
128. Таким образом, Европейский суд признал разумным то, что
заявитель добивался общественного признания факта нарушения его
права на частную жизнь и поддержания его позиции перед комиссиями
СМИ ввиду отсутствия других средств правовой защиты. На самом
деле, власти Великобритании утверждали, в контексте статьи 13
Конвенции, что эти комиссии являлись частью правового режима
охраны частной жизни в Соединенном Королевстве и позволяли
заявителю "отстаивать и требовать исполнения" своих прав.
Заявитель добился успеха в КТВ и НТК, оба органа признали наличие
нарушения права на неприкосновенность частной жизни, позднее их
решения были опубликованы. Он мог бы потерпеть неудачу в КДП, но
это бы не означало, что расходы, понесенные в связи с этим, будут
считаться понесенными впустую (см., например, Постановление
Европейского суда по делу "Финдли против Соединенного Королевства"
(Findlay v. United Kingdom) от 25 февраля 1997 г., Reports 1997-I,
з 91). Тем не менее, Европейский суд не считает, что все затраты
были оправданными в отношении процедуры рассмотрения заявлений в
комиссиях СМИ, он счел заявленное количество часов, потраченных на
рассмотрение дела в КТВ и степень привлечения старшего солиситора
и юриста чрезмерными.
129. Таким образом, принимая решение на основе принципа
справедливости, Европейский суд присуждает заявителю возмещение
расходов, связанных с рассмотрением дела в национальных органах, в
размере 3000 евро.
130. Что касается рассмотрения дела в соответствии с
Конвенцией, Европейский суд обратил внимание на детальную
ведомость издержек заявителя на его представителей и на обе его
жалобы (о нарушении статьи 8 отдельно и в совокупности со статьей
13) направленные на установление нарушения Конвенции. Что касается
возражений властей Великобритании относительно требований
заявителя, касающихся возмещения будущих судебных расходов,
Европейский суд не признает необходимым возместить расходы,
касающиеся исследований, проведенных после установления
приемлемости. Вместе с тем, Европейский суд установил, что расходы
на проведение исследования, формулирование притязаний и
представление документов в соответствии со статьей 41 Конвенции
были необходимы и рациональны.
131. Европейский суд присудил заявителю общую сумму в размере
15800 евро в отношении расходов, связанных с рассмотрением дела в
соответствии с Конвенцией, менее 725 евро было оплачено
Европейскому совету заявителем в качестве оплаты юридической
помощи, конечная компенсация в отношении расходов, связанных с
рассмотрением дела в соответствии с Конвенцией составила 15075
евро.
132. Общая сумма судебных расходов и издержек, в национальных
судах и при рассмотрении дела в соответствии с Конвенцией,
присужденная Европейским судом, составляет 18075 евро.
D. Процентная ставка при просрочке платежей
133. Европейский суд счел, что процентная ставка при просрочке
платежей должна быть установлена в размере предельной годовой
процентной ставки по займам Европейского центрального банка плюс
три процента. (см. Постановление Большой палаты Европейского суда
по делу "Кристин Гудвин против Соединенного Королевства"
(Christine Goodwin v. United Kingdom), жалоба N 28957/95, з 124,
ECHR 2002).
НА ЭТИХ ОСНОВАНИЯХ СУД ЕДИНОГЛАСНО:
1) постановил, что имело место нарушение статьи 8 Конвенции;
2) постановил, что имело место нарушение статьи 13 Конвенции,
взятой в совокупности со статьей 8 Конвенции;
3) постановил:
a) что государство-ответчик обязано в течение трех месяцев со
дня вступления Постановления в законную силу в соответствии с
пунктом 2 статьи 44 Конвенции выплатить следующие суммы, которые
подлежат переводу в фунты стерлингов по курсу на день выплаты:
i) 11800 (одиннадцать тысяч восемьсот) евро в возмещение
морального вреда;
ii) 18075 (восемнадцать тысяч семьдесят пять) евро в
возмещение судебных расходов и издержек, включая любой налог,
начисляемый на вышеуказанные суммы;
b) что с даты истечения вышеуказанного трехмесячного срока до
момента выплаты простые проценты должны начисляться на эти суммы в
размере, равном минимальному ссудному проценту Европейского
Центрального Банка плюс три процента;
4) отклонил остальные требования заявителя о справедливой
компенсации.
Совершено на английском языке, и уведомление о Постановлении
направлено в письменном виде 28 января 2003 г. в соответствии с
пунктами 2 и 3 правила 77 Регламента Суда.
Председатель Палаты
Матти ПЕЛЛОНПЯЯ
Секретарь Секции Суда
Майкл О'БОЙЛ
EUROPEAN COURT OF HUMAN RIGHTS
FOURTH SECTION
CASE OF PECK v. THE UNITED KINGDOM
(Application No. 44647/98)
JUDGMENT <*>
(Strasbourg, 28.I.2003)
In the case of Peck v. the United Kingdom,
--------------------------------
<*> This judgment will become final in the circumstances set
out in Article 44 з 2 of the Convention. It may be subject to
editorial revision.
The European Court of Human Rights (Fourth Section), sitting as
a Chamber composed of:
Mr {M. Pellonpaa} <*>, President,
Sir Nicolas Bratza,
Mr A. Pastor Ridruejo,
Mr M. Fischbach,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki, judges,
and Mr M. O'Boyle, Section Registrar,
--------------------------------
<*> Здесь и далее по тексту слова на национальном языке набраны
латинским шрифтом и выделены фигурными скобками.
Having deliberated in private on 7 January 2003,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
1. The case originated in an application (No. 44647/98) against
the United Kingdom of Great Britain and Northern Ireland lodged
with the European Commission of Human Rights ("the Commission")
under former Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") by a
national of the United Kingdom, Mr Geoffrey Dennis Peck ("the
applicant"), on 22 April 1996.
2. The applicant, who had been granted legal aid, was
represented by Mr P. Leach, a barrister lecturing in London. The
United Kingdom Government ("the Government") were represented by
their Agent, Ms R. Mandal, of the Foreign and Commonwealth Office.
3. The applicant complained about the disclosure to the media
of closed circuit television footage, which resulted in images of
himself being published and broadcast widely, and about a lack of
an effective domestic remedy in that respect. He invoked Articles
8 and 13 of the Convention.
4. The application was transmitted to the Court on 1 November
1998, when Protocol No. 11 to the Convention came into force
(Article 5 з 2 of Protocol No. 11). It was allocated to the Third
Section of the Court (Rule 52 з 1 of the Rules of Court). Within
that Section, the Chamber that would consider the case (Article 27
з 1 of the Convention) was constituted as provided in Rule 26 з 1.
5. By decision of 15 May 2001 the Court declared the
application admissible.
6. The Government, but not the applicant, filed observations on
the merits (Rule 59 з 1). The Chamber decided, after consulting
the parties, that no hearing on the merits was required (Rule 59 з
2 in fine).
7. On 1 November 2001 the Court changed the composition of its
Sections (Rule 25 з 1). This case was assigned to the newly
composed Fourth Section.
THE FACTS
I. The circumstances of the case
8. The applicant was born in 1955 and he lives in Essex.
A. Closed Circuit Television ("CCTV")
and the relevant footage
9. In February 1994 Brentwood Borough Council ("the Council")
approved guidelines for the operation and management of CCTV. The
CCTV tape recordings would be retained initially for 90 days, this
period to be reviewed from time to time and reduced to a minimum,
and the tapes would be erased on completion of the storage period.
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. 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". In April 1994
the Council installed a CCTV surveillance system in Brentwood. It
was fully operational by July 1994. The Council's monitoring
operator had a direct visual and audio link to the police so that
if it was considered that an incident warranting police
involvement was taking place, the images being captured could be
switched through to the police.
10. In August 1995 the applicant was suffering from depression
as a result of 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,
filmed his movements. The CCTV footage later disclosed did not
show the applicant cutting his wrists, the operator was solely
alerted to an individual in possession of a knife at the junction.
11. The police were notified by the CCTV operator and arrived.
They took the knife from the applicant, gave him medical
assistance and brought him to the police station. He was detained
under the Mental Health Act 1983. His custody record refers to his
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.
B. Release and publication of the footage
12. 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.
13. 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.
14. 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.
15. On 13 October 1995 an article entitled "Gotcha" appeared in
the "Yellow Advertiser", a local newspaper with a circulation of
approximately 24,000. 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.
16. As a result Anglia Television sought, and the Council
provided, footage of the incident involving the applicant. 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. However, that masking was later considered
inadequate by the Independent Television Commission (see below),
the applicant's distinctive hairstyle and moustache meaning that
he was easily recognisable to anyone who knew him.
17. On 18 October 1995 the Chairman of the Council informed the
Council Technical Services Committee that cooperation 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.
18. 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
suffering from severe depression.
19. 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"
opined that the applicant was not identifiable. The Press
Complaints Commission did not decide whether or not the applicant
was identifiable from the photograph (see below).
20. At 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 and that all faces should be masked. The BBC were also
to consult with the police to ensure that they had "no objection
to recordings being shown because of subjudice issues".
21. In or around 9 - 11 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 at which stage the Council became aware of his identity.
The Council contacted the producers who confirmed that his 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.
22. 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.
23. 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.
C. The Broadcasting Standards Commission ("BSC")
24. 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 his complaints.
25. 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. However, the BSC found that 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 with the episode of "Crime
Beat" on 12 June 1997 and a summary of the adjudication was also
published in the "Daily Telegraph" newspaper on 12 June 1997.
D. The Independent Television Commission ("ITC")
26. 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.
E. The Press Complaints Commission ("PCC")
27. 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 implied that the applicant had committed a 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.
F. The judicial review proceedings
28. On 23 May 1996 he 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. On 26 June 1996 a single judge of the High Court refused
leave. On 18 October 1996 the High Court granted leave on a
renewed request and leave to amend the application to include a
complaint that the disclosure was, if lawful, irrational.
29. By judgment dated 25 November 1997 the High Court rejected
the application for judicial review. It 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."
30. It concluded that the Council had the power to distribute
the CCTV footage to the media by virtue of section 111 of the
Local Government Act 1972 in the discharge of their functions
under Section 163 of the 1994 Act.
31. As to the "rationality" of the Council's decision to
disclose, the applicant submitted that the Council acted
irrationally in disclosing the footage with the aim of crime
prevention when he had not been, in fact, involved in any criminal
activity. He argued that by failing to consult the police to see
if he had been charged with a criminal offence and to impose
sufficient restrictions as regards disclosure of 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 guidelines.
32. 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."
33. 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."
34. Following an oral hearing before the full Court of Appeal,
the applicant's leave application was dismissed on 19 February
1998.
II. Relevant domestic law and practice
A. The relevant powers of the Council
35. The Criminal Justice and Public Order Act 1994 ("the 1994
Act") came into force on 3 February 1995. Section 163, in so far
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."
36. Section 111(1) of the Local Government Act 1972 provides,
in so far 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."
37. 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.
38. 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.
B. Judicial review
39. 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. If a decision
is so disproportionate to its intended objective as to be
irrational, the Court will strike it down. The English courts do
not recognise proportionality as a separate head of judicial
review. However, in the case of Reg. (Alconbury Developments Ltd)
v. Secretary of State for the Environment, Transport & the Regions
[2001] 2 WLR 1389), Lord Slynn of the House of Lords stated obiter
dictum that:
"I consider that even without reference to the Human Rights Act
1998 the time has come to recognise that this principle [of
proportionality] is part of English administrative law, not only
when judges are dealing with Community acts but also when they are
dealing with acts subject to domestic law."
C. Private law remedies
40. 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" (Coco
v. A.N. Clark Engineers Ltd [1969] RPC 41, at 47). A fuller
description of this cause of action together with more recent
domestic case-law are detailed in the case of the Earl and
Countess Spencer v. the United Kingdom (applications Nos. 28851/95
and 28852/95, decision of 16 January 1998, Decisions and Reports
(DR) 25, p. 56).
41. 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.
42. 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.
43. 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).
44. 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 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).
45. 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.
D. Statutory protection for privacy
46. 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, by 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).
47. The Human Rights Act 1998 came into force in October 2000.
It requires that, so far as it is possible to do so, primary and
subordinate legislation be read and given effect in a manner
compatible with the Convention and further provides that it is
unlawful for a public authority to act in a way incompatible with
a Convention right.
In the case of Douglas v. Hello! Ltd [2001 1WLR 992), Sedley
L.J. indicated that he was prepared to find that there was now a
qualified right to privacy under English domestic law, although
other members of the Court of Appeal (Brooke L.J. and Keene L.J.)
did not find it necessary to rule on the point.
E. The media commissions
48. 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).
49. The BSC has powers, inter alia, to direct broadcasting
bodies to publish the findings of the BSC or a summary of them
(section 119), but it has no powers to direct a broadcasting body
not to broadcast any programme.
50. 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.
51. 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.
THE LAW
I. Alleged violation of Article 8 of the Convention
52. The applicant complained that the disclosure by the Council
of the relevant CCTV footage, which resulted in the publication
and broadcasting of identifiable images of him, constituted a
disproportionate interference with his right to respect for his
private life guaranteed by Article 8 of the Convention. That
Article, in so far as 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,
..."
A. The existence of an interference with private life
1. The parties' submissions
53. The Government contended that the applicant's right to
private life had not been engaged. They mainly argued 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 could not change the public
quality of the applicant's original conduct and render it more
private. The Government also maintained that the applicant waived
his rights by choosing to do what he did, where he did, and
submitted that the fact that the applicant did not complain about
being filmed, as such, amounted to an acknowledgement that the
filming did not engage his right to the protection of his private
life. They further considered that the question of whether there
was an interference with his private life was not clear-cut and
submitted that certain factors should be borne in mind in this
respect, including the nature of the impugned act and the parties'
conduct.
54. The applicant maintained that the disclosure of the footage
constituted a serious interference with his private life. The
relevant footage related to an attempted suicide, he was unaware
that 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 and colleagues. While he was not
complaining about being filmed by CCTV (as this saved his life),
he took issue with the disclosure by the Council of the CCTV
material which resulted in the relevant publications and
broadcasts.
55. While the CCTV material disclosed did not show him actually
cutting his wrists, the applicant argued that it concerned a
period immediately following his suicide attempt and thus related
to that personal and private matter. He may have been in the
street, but it was late at night, he was not taking part in a
public demonstration (the main reason for demonstrating is to be
seen) and, given his psychological state, it could not 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.
56. In addition, the applicant maintained that the
jurisprudence of the Convention organs accepts that the occurrence
of an event in a public place was only one element in the overall
assessment of whether there was an interference with private life,
other relevant 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
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