Misuse of private information by Channel 5 documentary – public interest test, and damages


Re: Ali & Anor v Channel 5 Broadcasting Ltd [2019] EWCA Civ 677

Part of the defendant’s documentary portrayed the claimants’ eviction. It included footage that the judge found represented an intrusion into their private life, not justified by the public interest, nor by legitimate exercise by the broadcasters of their rights of free expression. The claimants appealed their damages awards and the defendant cross-appealed the finding of liability. Both appeals were refused.

Held: the judge was manifestly aware of, and paid due regard to, the crucial principle that, where there is a rational view by which the public interest can justify publication, a court must give full weight to editorial knowledge and discretion and be slow to interfere. Where the Court is satisfied that a judge has taken into account all relevant matters, it is always slow to interfere with the assessment and conduct of the balancing exercise. If a challenge to a general damages award is to the size of the award, and the judge has as heard the evidence of witnesses in assessing the effect on the claimants of the misuse of their private information, the Court should not intervene unless the award is so high as to be perverse. The judge will have been better placed to perform, an assessment of all the relevant factors and it is not enough for this Court to conclude that it would have made some different award.

Hugh Tomlinson QC and Antony White QC are involved in this case.