Scottish Court of Session Decisions

"The Lord President has issued the following directions about the practice which will be followed in regard to requests by broadcasting authorities for permission to televise proceedings in the Court of Session and the High Court of Justiciary. (a) The rule hitherto has been that television cameras are not allowed within the precincts of the court. While the absolute nature of the rule makes it easy to apply, it is an impediment to the making of programmes of an educational or documentary nature and to the use of television in other cases where there would be no risk to the administration of justice. (b) In future the criterion will be whether the presence of television cameras in the court would be without risk to the administration of justice. (c) In view of the risks to the administration of justice the televising of current proceedings in criminal cases at first instance will not be permitted under any circumstances. (d) Civil proofs at first instance do not normally involve juries, but the risks inherent in the televising of current proceedings while witnesses are giving their evidence justify the same practice here as in the case of criminal trials..... (h) Requests from television companies for permission to film proceedings, including proceedings at first instance, for the purpose of showing educational or documentary programmes at a later date will be favourably considered, but such filming may be done only with the consent of all parties involved in the proceedings, and it will be subject to approval by the presiding judge of the final product before it is televised."

"The following comprises a list of rules with which the Sheriff Principal of Glasgow and Strathkelvin would require Lion to comply in the recording of any proceedings in the Sheriff Courts of the Sheriffdom and in the use of any material which Lion have recorded for the purpose of a documentary programme."

"I hereby consent to the filming and recording of my contribution to and participation in the Programme subject to the terms and conditions specified below:

"In any democratic society, there are balances to be struck between the citizen's right to receive information and ideas, and the responsibilities of broadcasters and journalists to behave reasonably and fairly and not to cause an unwarranted infringement of a citizen's basic right to privacy.

The guidance in this Code cannot resolve that dilemma. But it sets out what the Broadcasting Standards Commission considers are the principles to be observed and practices to be followed by all broadcasters (including the providers of teletext services) to avoid unjust or unfair treatment in radio and television programmes, and to avoid the unwarranted infringement of privacy in the making and broadcasting of such programmes. Broadcasters and broadcasting regulatory bodies should reflect this guidance in their own codes and guidelines....".

"From the outset, broadcasters should ensure that all programme-makers, whether in-house or independent, understand the need to be straightforward and fair in their dealings with potential participants in factual programmes, in particular by making clear, wherever practicable, the nature of the programme and its purpose and, whenever appropriate, the nature of their contractual rights. Many potential contributors will be unfamiliar with broadcasting and therefore may not share assumptions about programme-making which broadcasters regard as obvious."

"Contributors should be dealt with fairly. Where they are invited to make a significant contribution to a factual programme, they should:

"All reasonable steps should be taken to ensure that guarantees given to contributors, whether as to content, confidentiality or anonymity, are honoured."

"For much of the time, the private lives of most people are of no legitimate public interest. It is important that when, for a short time, people are caught up, however involuntarily, in events which have a place in the news, their situation is not abused or exploited either at the time or in later programmes which revisit those events. When broadcasters are covering events in public places, they should ensure that the words spoken or images shown are sufficiently in the public domain to justify their broadcast without the consent of the individuals concerned. When filming or recording in institutions, organisations or agencies where permission has been given by the relevant authority or management, broadcasters are under no obligation to seek the individual consent of employees or others whose appearance is incidental or where they are essentially anonymous members of the general public. However, in clearly sensitive situations in places such as hospitals or prisons or police stations, individual consent should normally be obtained unless their identity has been concealed. Broadcasters should take similar care with material recorded by CCTV cameras to ensure identifiable individuals are treated fairly. Any exceptions to the requirement of individual consent would have to be justified by an overriding public interest."

"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2) If the person against whom the application for relief is made ('the respondent') is neither present nor represented, no such relief is to be granted unless the court is satisfied -

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to - (a) the extent to which - (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code.

(5) In this section - 'court' includes a tribunal; and 'relief' includes any remedy or order (other than in criminal proceedings)."

"I recognise that without reference to the content of the confidential information this conclusion is necessarily enigmatic to those who have not read the private judgments of the courts below. But if I were to elaborate I would at once destroy the confidentiality the Cream group are seeking to preserve."

"As a result of further pressure from Mr Overton to persuade the pursuer to consent to filming, the pursuer requested that she be allowed to view the footage which Lion had by that time taken prior to it being broadcast on the basis that if she did not wish the footage, or any of it, to be used, it would not be used. Mr Overton on behalf of Lion agreed to this request."

"Many potential contributors will be unfamiliar with broadcasting and therefore may not share assumptions about programme-making which broadcasters regard as obvious."

"The pair then requested that they be allowed to view anything we planned to broadcast prior to transmission. This was something I agreed to and am still happy to honour. We continued filming on that basis clear that the girls had thought through the filming and were committed to contributing."

"to benefit the persons named in paragraphs 3 and 4 by providing them with the right to refuse to consent to filming, thereby retaining the rights of an accused person both prior to, and in terms of, the 1992 Directions."

"a transaction having legal effect, and includes -

"One of its effects would be to deprive the pursuer of any right to claim a breach of her right to respect for her private life in terms of Article 8 of the European Convention on Human Rights (the 'Convention'). It is required in terms of the Guidelines. In the absence of such consent the filming of the pursuer in Court by Lion would be a breach of the Guidelines, a contravention of Article 8 and a contempt of Court. Esto the giving of consent to filming by the pursuer did not have legal effect (which is denied), the pursuer is entitled to withdraw any consent which may have been given, and indeed the pursuer has, for the avoidance of doubt, done so. In such circumstances, the broadcast by the BBC of any of the footage featuring the pursuer taken by Lion would be in breach of the Guidelines and a misuse of private information relating to the pursuer, and ought not to be allowed. The said footage, at the very least, shows the pursuer in an extremely embarrassing light. The footage taken on 11 April 2003 shows her habitually sucking a baby's dummy within the precincts of Glasgow Sheriff Court. It shows her in a state of drunkenness in an important public place, namely, Glasgow Sheriff court. It shows her in various states of distress. More fundamentally, it discloses personal information concerning the pursuer including (i) the various criminal charges the pursuer was then facing; and (ii) the fact that she had failed to appear at Court to answer those charges as a result of which she was remanded into custody. An adult exercising reasonable prudence would not have agreed to be filmed in such circumstances nor to having such facts disclosed publicly. Further, for the reasons hereinafter condescended upon, the broadcast of the film of the pursuer would cause substantial prejudice to the pursuer, as hereinafter condescended on."

"Separatim, the pursuer being reasonably apprehensive that the first defenders will broadcast television footage obtained without the pursuer's consent and in breach of duties of confidence owed to her, all as condescended upon, decree of interdict should be granted as third concluded for, failing which as fourth concluded for."

"There being no grounds for restraint of the defenders' freedom of expression, interdict should be refused and the defenders assoilzied."

"Any information concerning the pursuer which may have been disclosed in open Court by her own Solicitor, the Procurator Fiscal or the Sheriff could lawfully have been the subject of contemporaneous reporting by organisations such as the BBC. To the knowledge of the pursuer there has been no such reporting of anything said in relation to her in Court. Such information is not otherwise held in any public records. In these circumstances, it would not simply be difficult for the information so spoken to in court to be discovered but, rather, it would be impossible, no matter how diligent the research which might be carried out."

"During the course of each of the foregoing court appearances, including the appearances when reports were available, no detailed reference was made in Court to the terms of either the First SER or the Second SER. The Sheriffs in each case had read the relevant report beforehand and indicated that they were minded to proceed as hereinbefore condescended on without any material discussion of the position. Mr McGovern required to say very little in mitigation as he was content, on the pursuer's behalf, with the Sheriffs concerned proceeding to do as they did. In any event, as hereinbefore condescended upon, no public record of what was said in relation to the pursuer on any of the foregoing dates exists, nor, so far as the pursuer is aware, has there been any reporting or broadcast of such information. Accordingly, all of the information which the pursuer seeks to protect in the present action remains outwith the public domain. The pursuer would at the very least be humiliated and publicly embarrassed by the broadcast of the said footage."

"The report is the property of the court and a copy of it is made available to the offender of his/her solicitor by the clerk of court. It will also be seen by the prosecutor and the judge, and some comment may be made on its contents in open court. Because of this, problems about confidentiality may arise. Sensitive information may need to be noted as such in the report with a request that it is not disclosed, or it may be omitted from the report and brought to the attention of the judge in chambers in the presence of the offender and the defence agent."

"On the other hand it does provide an example of a case where the whole terms of the document which was at the heart of the proceedings were treated as having been published although only a summary of them was given orally and verbally in court."

"Whether the publication of information has been so extensive as to destroy confidentiality is 'a question of degree depending on the facts of the particular case'. Where marital secrets had been discussed by both parties in a number of newspaper articles, they were no longer 'confidential information'. Furthermore, the confidentiality of information may be lost by the passage of time or change of circumstances. The fact that a matter has once been in the public domain cannot, however, prevent its resurrection, possibly many years later, from being an infringement of privacy; the determination is matter of fact and degree. It has been held that previous convictions and sentences cannot be confidential information, but this may be an overstatement of the position."

"Article 8

"Private life is a broad term not susceptible to exhaustive definition. The court has already held that elements such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Art.8. The Article also protects a right to identity and personal development, and the right to establish and develop relationships with other human beings and the outside world and it may include activities of a professional or business nature. There is, therefore, a zone of interaction of a person with others, even in a public context, which may fall within the scope of 'private life'..... However, the Court notes that the present applicant did not complain that the collection of data through the CCTV camera monitoring of his movements and the creation of a permanent record of itself amounted to an interference with his private life. Indeed, he admitted that that function of the CCTV system together with the consequent involvement of the police may have saved his life. Rather, he argued, that it was the disclosure of that record of his movements to the public in a manner in which he could never have foreseen which gave rise to such an interference."

"As a result, the relevant moment was viewed to an extent which far exceeded any exposure to a passer-by or to security observation and to a degree surpassing that which the applicant could possibly have foreseen when he walked in Brentwood on August 20, 1995.

Accordingly, the Court considers that the disclosure by the Council of the relevant footage constituted a serious interference with the applicant's right to respect for his private life."

"That the difficulty which arises is a private issue between [the pursuer] and the producers of the television documentary and is not one in which I should become involved." (number 6/3N of process), and to consider that the Guidelines had not been breached (number 7/3 of process).