Lexploria

Information Note on the Court’s case-law 49

January 2003

Peck v. the United Kingdom - 44647/98

Judgment 28.1.2003 [Section IV]

Article 8

Article 8-1

Respect for private life

Disclosure to media of CCTV footage of individual who attempted to commit suicide in a public place: violation

Facts : The applicant attempted to commit suicide in a public street, unaware that he was being filmed by a closed circuit television (“CCTV”) camera. The operator, who saw only that the applicant was carrying a kinfe, alerted the police, who intervened and gave the applicant medical assistance. The applicant was released without charge. The local authority released a press feature which included two still photographs from the footage of the incident, without masking the applicant’s face, to accompany an article entitled “Defused – the partnership between CCTV and the police prevents a potentially dangerous situation.” Two local newspapers also published photographs and a local television broadcast included footage of the incident, with masking which was subsequently found by the Independent Television Commission (ITC) to be inadequate. The local authority also agreed to provide footage for inclusion in “Crime Beat”, a series on BBC national television, with the oral condition that no one should be identifiable. However, many of the applicant’s friends and family recognised him on the programme and the masking was found by the Broadcasting Standards Commission (BSC) to have been inadequate. The applicant made a number of media appearances to speak out against the dissemination of the footage and his complaints to the ITC and BSC were upheld. A complaint to the Press Complaints Commission was unsuccessful, however, and an application for judicial review was refused, the High Court concluding that the local authority had not acted unlawfully or irrationally.

Law : Article 8 – The monitoring of the actions of an individual in a public place by means of photographic equipment, without recording, does not as such give rise to an interference with private life but the recording of data and the systematic or permanent nature of the record may do so. In the present case, the applicant did not complain that the monitoring of his movements and the creation of a permanent record of itself amounted to an interference; rather, he submitted that the disclosure of that record in a manner which he could not have foreseen gave rise to an interference. The applicant was in a public street, but not for the purpose of participating in a public event, and he was not a public figure; it was late at night and he was in distress and although he was wielding a knife he was not charged with any offence in that respect. The actual suicide attempt was not recorded or disclosed but the immediate aftermath was disclosed to the public without the applicant’s identity being adequately masked. As a result, the incident was viewed to an extent which far exceeded any exposure to a passer-by or to security observation and to a degree surpassing what the applicant could reasonably have foreseen. The disclosure thus constituted a serious interference with the right to respect for private life. It had a basis in domestic law and was foreseeable and it pursued the legitimate aims of public safety, the prevention of disorder and crime and the protection of the rights of others. As to the necessity of the disclosure, the case did not concern the commission of a crime: it was not disputed that the CCTV system played an important role in the detection and prevention of crime, a role rendered more effective through advertising its benefits, but the local authority had other options available. Firstly, it could have identified the applicant and obtained his consent: while individuals might not give their consent and it might not be feasible to obtain consent when footage includes numerous persons, the footage in the present case related to one individual and it was not disputed that the local authority could have made enquiries with the police to establish his identity. Secondly, the local authority could itself have masked the images: while the authority did not have facilities, its guidelines indicated that it was intended to have them, and in any event no attempt was made to mask the images released in its own press feature. Thirdly, the authority could have taken the utmost care in ensuring that the media masked the images: in that connection, it would have been reasonable to demand written undertakings rather than oral requests. The authority did not explore the first two possibilites and the steps it took in respect of the third were inadequate. Particular care was required – including verifying whether the applicant had been charged – where the material was released with the aim of promoting the effectiveness of CCTV in the context of crime prevention. Thus, in the circumstances of the case, there were not relevant and sufficient reasons to justify the direct disclosure of stills to the public without obtaining the applicant’s consent or masking his identity, or to justify the disclosures to the media without taking steps to ensure as far as possible that masking would be effected. The applicant’s voluntary media appearances did not diminish the serious nature of the interference or reduce the correlative requirement of care. The disclosures were not accompanied by sufficient safeguards and constituted a disproportionate interference with his private life.

Conclusion : violation (unanimously).

Article 13 – The Court confined its assessment to the remedies which could be considered as having had some relevance to the applicant’s complaints. As to judicial review, the sole issue before the domestic courts was whether the policy could be said to be “irrational”. This threshold was placed so high that it effectively excluded any consideration of the question of whether the interference with the applicant’s right answered a pressing social need or was proportionate. Consequently, judicial review did not provide an effective remedy. As to the media commissions, their lack of power to award damages meant that they could not provide an effective remedy. Finally, as to an action in breach of confidence, it could be concluded that the applicant did not have an actionable remedy at the relevant time: it was unlikely that the courts would have accepted that the images had the “necessary quality of confidence” or that the information was “imparted in circumstances importing an obligation of confidence”. Moreover, once the material was in the public domain, its re-publication was not actionable as a breach of confidence, yet such an action could not have been contemplated before the applicant became aware of the disclosures. Given these deficiencies, it was not necessary to consider whether an award of damages would have been available. In conclusion, the applicant had no effective remedy.

Conclusion : violation (unanimously).

Article 41 – The Court awarded the applicant 11,800 € in respect of non-pecuniary damage. It also made awards in respect of costs and expenses.

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