Privacy Rights of Tenants When Enforcing Possession Orders

In Ali & Anor v Channel 5 Broadcasting Ltd [2019] EWCA Civ 677, the Court of Appeal was asked to consider the privacy rights of tenants when High Court Enforcement Officers (HCEOs) are filmed enforcing possession orders.

“Can’t Pay? We’ll Take It Away” is a popular Channel 5 series which records the work of High Court Enforcement Officers executing Writs of Possession. Footage is shown of HCEOs entering properties and evicting tenants who have fallen behind payments due under their tenancy.

The Court was told that the aim of the producer, Mr Brinkworth, was to raise public levels of awareness of the process and effects of enforcement and in particular, how possession can be expedited by enforcing County Court Orders in the High Court. Mr Brinkworth felt that a large number of tenants were unaware of this process and once proceedings had reached that stage, the tenants’ rights were very limited. He hoped to help the public appreciate the harsh reality and consequences of debt.

The story of Shakir Ali and Shahida Aslam, the Claimants in this matter is a perfect example of tenants who are ignorant of the expedited eviction process. When their eviction was filmed in 2015, Mr Ali appeared shocked and confused as he was under the impression that he had a lot longer to leave the property. He was woken up by the bailiffs entering his home just after 8am in the morning and was recorded looking rather flustered in his pyjamas and a vest top. Mr Ali and Mrs Aslam repeatedly told the film crew not to film, and Mr Ali even wrote a letter to Channel 5 objecting to the airing of the footage, particularly as his daughter was being bullied in school as a result of the eviction. However, Channel 5 decided to broadcast the programme.

Being faced with Bailiffs entering your home is a distressing experience, which understandably one would not want to share with 9.65 million viewers. Meanwhile, the Landlord’s son recorded two short videos of the eviction and published these on his social media accounts through which the Claimants’ friends and relatives became aware of the eviction.

Mr Ali and Mrs Aslam challenged the airing of footage displaying their eviction as a breach of the privacy rights of tenants. They did not complain about the broadcasting of the fact that they were being evicted but argued that the images conveying the claimants, their home and the details of the eviction amounted to a misuse of private information. During the episode not only was Mr Ali filmed in his pyjamas but shots were also aired of the family’s possessions in bags, their children’s bedrooms as well as a scene of the Landlord’s son humiliating the couple. The show revealed details of the Claimants’ financial situation (both being unemployed and in receipt of housing benefit).

Channel 5 defended the claim for damages on the basis that the claimants did not have a reasonable expectation of privacy in these circumstances, and if they did, this was outweighed by the right to freedom of expression due to the significant public interest in this matter. The High Court Judge found that the Claimants’ Article 8 rights to privacy had been engaged and the airing of what he considered to be “fairly sensitive” private information was not justified for the purpose of public interest. He awarded the Claimants £10,000 each in damages. In arriving at that figure, the Judge took into account the fact that the information was already in the public domain to a certain extent given the posting of the videos on social media. The Claimants appealed the amount of damages awarded and the Judge’s approach to arriving at the figure whilst the Channel 5 cross-appealed on the finding of liability. The Court of Appeal rejected both appeals and found that the amount awarded in damages to the Claimant was reasonable and also that the High Court Judge had correctly found that the tenants right to privacy outweighed the right to freedom of expression/the public interest.

Lessons learned:

1. It is important to note that the filming of the eviction was not of itself considered an unlawful breach of the privacy rights of tenants nor was the broadcasting of the fact that the tenants had been evicted.

2. Landlords need not be concerned if they have consented to and/or had an eviction filmed for the show as they are not liable in such proceedings (liability being with Channel 5 who broadcasted the programme)

3. Landlords should, however, bear in mind that tenants, even those who fail to leave a property voluntarily within the time specified in a Possession Order still have a reasonable expectation of privacy.

Does this mean the end of one of Britain’s favourite shows? Channel 5 has no plans to stop the show as far as we are aware but will certainly need to tone down or adopt a less intrusive approach going forward if they want to avoid similar claims.

Simao Paxi-Cato