United Kingdom

[GB] ITV had not breached an individual’s privacy by identifying her partner who was a police suspect

IRIS 2018-2:1/19

Julian Wilkins

Wordley Partnership and Q Chambers

On 18 December 2017, Ofcom issued its notable decision concerning privacy and the identification of individuals mentioned in criminal investigations. On 20 April, 2017, theindependent commercial television channel, ITV, broadcast an episode of Detectives, which is a factual programme that follows police detectives as they investigate crimes. In this episode, they show extracts of a police interview with Mr Lazenby, who is suspected of committing rape. During the police interview, the detectives ask Mr Lazenby whether he is in any relationships and whether they involve sexual intimacy. Mr Lazenby mentions Mrs T, whom he had met through a dating agency. Mrs T’s name is obscured in the broadcast material. One of the questions asked is “Okay, are you still in a sexual relationship with [name obscured]”. During the police interview, Mr Lazenby tried to deny the sexual relationship with Mrs T but then changed his mind. The programme producers considered that this aspect of the police interview was crucial to the investigation and relevant for inclusion in the broadcast. Mr Lazenby was charged and subsequently found guilty of rape and sexual assault against the third party. The court trial and conviction occurred prior to the April 2017 broadcast.

Prior to the broadcast, the producers contacted Mr Lazenby’s partner, Mrs T, about the content and assured her that her name would not be mentioned. Mrs T asked that the section not be shown, that Mr Lazenby’s name not be mentioned, or that his face be obscured. Mrs T considered that there was sufficient detail to reveal her identity, as people in the vicinity to where they lived would recognise Mr Lazenby and associate him with Mrs T, and she was concerned that this may lead to retribution, as well as have a negative impact on her private life and work life. The broadcaster argued that the programme makers had to carefully weigh the element of public interest in the broadcast against Mrs T’s privacy. Mrs T’s name was obscured and some of the questions, such as the one asking when Mr Lazenby and Mrs T last had sex, were excluded from the broadcast. However, the broadcaster was fully entitled to identify Mr Lazenby, especially as prior to broadcast he had been convicted at court and the trial had been covered by the media. As such, information about Mr Lazenby and Mrs T at the time of broadcast was no longer private, given the prior extensive press coverage of the trial. The broadcaster considered it highly likely that prior to broadcast, anyone who knew Mrs T would be aware of her relationship with Mr Lazenby.

Ofcom, when exercising its statutory duties concerning broadcast standards, had to provide adequate protection to members of the public and all other persons from unjust treatment and unwarranted infringement of privacy in, or in connection with obtaining material included in, programmes. Further, Ofcom applied Rule 8.1 of its Code of Conduct which “states that any infringement in privacy in programmes, or in connection with obtaining material included in programmes, must be warranted”. The Code of Conduct at section 8 contains practices to be followed by broadcasters, but as Ofcom observed, following these practices did not mean a breach of privacy would be avoided. If the practices are not followed, then there will only be a breach of privacy where it results in an unwarranted infringement of privacy. Each case had to be assessed on its own facts and circumstances. Ofcom considered that Mr Lazenby would have been recognised and the association with Mrs T would have been known to a limited number of people who knew him and Mrs T and already knew of their relationship. Certain details were omitted and Mrs T’s name was not mentioned; in any event, a publicised court trial occurred ahead of transmission. In the circumstances, Mrs T did not have a legitimate expectation of privacy concerning the information revealed in the programme, and it was not necessary for Ofcom to consider whether any infringement of privacy was warranted, so her complaint was dismissed.