The High Court said that the woman, known as T, was unable to
give informed consent to participation in the programme because she
suffers from a mental disorder and is a vulnerable adult. It upheld
her rights to privacy under Article 8 of the European
Convention on Human Rights. This guarantees respect for the right
to private life.
"The first question to ask is whether T's Article 8 rights under
the European Convention are engaged and as to that there is not,
and could not be, any dispute," said Justice Eady in his High Court
ruling.
"The court has to perform what has been described as the
'ultimate balancing exercise' as to whether in these circumstances
her Article 8 rights, should, or should not, take priority over the
Article 10 rights of the BBC and other persons involved in the
making and broadcast of the programme," said Eady. Article 10 of
the Convention protects the right to freedom of expression.
The programme follows T and her two-year-old daughter while the
daughter is taken away from her and placed with a couple for
adoption because the authorities believed it in the best interests
of the child.
The Court heard that T has an IQ of 63 and suffers from a mental
disorder under the Mental Capacity Act, which is not yet in force,
and so was represented in the case by the Official Solicitor, who
sought to protect her interest by preventing the intrusion into her
privacy that would be caused by the broadcast.
The programme includes footage of T's last meeting with her
daughter before she is taken to her adoptive parents.
"Without the capacity to consent, and without the capacity to
understand what the programme is about, let alone its potential
consequences, T has apparently permitted herself to be portrayed in
the most intimate circumstances and, in one instance, in
circumstances which can only be described as harrowing (primarily
for her but also for ordinary viewers)," said Eady. "There are few
things more intimate, or engaging of Article 8 rights, than
portraying a mother's last meeting with a much loved daughter, whom
she will not be permitted ever to see again – at least until she
grows up."
Eady said that there must be some concern that the broadcast of
the programme in its current state could cause T to face abuse or
harm from people who see the programme. The programme contains a
scene in which T is told she is "rough" with her child and has
trouble controlling her anger.
"It is not a matter of her, or the Official Solicitor, having to
prove that she would be greeted with a hostile and abusive reaction
by viewers who recognise her. That is, however, in my judgment a
real possibility," said Eady.
"What is of more immediate concern is that the broadcast itself
would constitute quite simply a massive invasion of T's privacy and
autonomy, and would undermine her dignity as a human being. I would
add, since the matter has also been addressed in submissions, that
no rational person could possibly think that it was in her best
interests to be portrayed to the general public in this light," he
said.
Eady said that the balance of issues weighed heavily in favour
of the obscuring of T's identity and not in favour of the BBC's
rights to free speech. "The value of the broadcaster's expression
in terms of Article 10 simply cannot be proportionate to the
exposure of T's raw feelings and of her treatment of, or
relationship with, her small daughter," he said.
The BBC must now ensure that T is not identifiable. Eady said
that it was not the role of the Court to order how that is done.
"It is for the BBC to decide whether, and in what form, the
programme should be broadcast. It is not for the court to direct
that any particular technique should be used, such as pixilation of
features, the use of an actor's voice, or the deleting of names,"
said Eady. "The court's sole interest is to prevent the further
infringement of T's Article 8 rights by her being identified in the
context of this programme."
