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(Family Division; Munby J; 6 July 2006)
Channel Four had produced a documentary about state schools which involved surreptitious filming in four schools. One of the schools had been chosen to show how behaviour problems could be prevented, but the footage from the other three schools showed children who were out of control. In response to concerns expressed by the relevant local authority about children in its care, in all cases the heads of the children had been obscured to help prevent the identification of any individuals. However, two of the children, appearing by their parents as litigation friends, sought to injunct Channel Four from broadcasting the film on the basis that the surreptitious filming was in breach of obligations of confidence enforceable at common law or equity and in breach of the Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 right of privacy. The schools themselves were identified as were year groups, and the children would be identifiable within the immediate locality.
A balancing exercise between the competing human rights had to be undertaken, which in this case came down strongly in favour of the broadcasters. The particular problem which was being aired was capable of being brought to public attention only if surreptitious methods were used. There had been no breach of the OFCOM Broadcasting Code, and the film raised matters of very great public concern. It was not appropriate merely to exclude footage of the two children who had brought the action, although that would have only marginal impact upon the message and content of the film as a whole, as there were no particular circumstances to justify protection of these children, as opposed to the other children portrayed.
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