07 April 2020 - Article
There are several interesting aspects to the case of AAA v Rakoff & others – and none of them to be discussed here include that it is a case about secret filming in an adult entertainment venue.
The real issues to look out for are:
- The venue’s nine employees who were featured in the covert filming have joined forces as claimants along with their corporate employer to try to stop use of the footage
- The case is about what limits should be imposed on the use of a covertly made recording, in circumstances where that intended use is by an activist group which is opposed to the business
- Although it is the privacy and data protection rights of the individual employees that are sought to be protected, this is inevitably also about the reputational harm that the content might cause to the employer
- A crucial question will be does the footage show anything which might truly be said to warrant disclosure in the public interest
- Private investigators who made the secret recordings when visiting the premises posing as customers have been sued along with the campaigners
The advent of activist and citizen journalism means that filming of events, including covert filming, is often undertaken either by those pursuing an agenda or direct participants, such as customers. YouTube has changed everything. Any interaction can be filmed and uploaded. It can be edited and presented in highly partisan ways. This is a major problem for any business which is targeted in that way. It must look after and protect its employees, it cannot after all allow them to suffer upset or embarrassment just because of their job. It must look after its own reputation, but also risks the reputational backlash from pursuing action against activists or – worst still its own service users or customers. These are difficult problems to reconcile.
In this instance the activist group in question, which campaigns against adult entertainment venues, commissioned private investigators to obtain tapes showing what happened inside two such venues. It has indicated that it wants to use the secret footage to show to licensing authorities to raise objections at licensing hearings. It also wants to publicise what it says the films show via its website and Twitter platforms.
What is unusual is that the nine claimant employees, who all appear in the covert footage, are pursuing the case along with their employer, the business which operates the licensed premises. Where personal and business interests are aligned this can make a powerful combination. It would be usual for the employer to meet the legal costs, but the individual employees will undoubtedly have stronger legal cases to pursue. Where a group of employees are featured in video content just doing their jobs, the issue is not about protecting commercial interests, but about safeguarding their privacy. The court will find those arguments more compelling than the minimising economic and reputational harm to a corporate claimant, even though that too may be a legitimate aim.
Activist or citizen journalism gives rise to very different considerations than covert filming that is carried out by journalists. Broadcast journalists are governed by the Ofcom Broadcasting Code which includes specific provisions on surreptitious filming that require the element of secrecy to be warranted in the context and in the public interest. Print journalists may also have editorial code requirements on clandestine journalism. But the main practical difference between covert filming undertaken by professional journalists is that they have access to legal advice, are ultimately part of a commercial organisation which is likely to appreciate the risks involved and unlikely to want to break the law.
This does not, of course, deal with the distress that might be caused by the broadcast of secret filming when those who were filmed can recognise themselves or may be recognisable by close family. We would always recommend challenging any broadcaster on how they intend to protect individual identities and ensuring that close heed is being paid as to whether the intrusion is truly warranted.
Nonetheless, a professional journalist can pose a less formidable challenge than a campaigner, activist or citizen journalist who may have little knowledge of, or in some cases, regard for the law. At the more extreme end of the campaigning spectrum, protestors may see employees as ‘mere’ collateral damage, or indeed intend to target them. A cursory view of online content shows footage which might properly be said to intrude on the privacy of people just doing their jobs.
In the ongoing AAA case (yet to go to trial), an interim injunction was originally sought but the defendants ultimately agreed not to use the footage without pixellating the faces of the performers in the club. Nothing was said about whether the footage also showed customers and what measures, if any, might protect their privacy.
There have been several past cases pursued by businesses against television documentaries featuring undercover filming. These have had very limited success, and have faced difficulties in demonstrating that the footage showed anything truly confidential, or that the public interest has justified the intrusion. But the outcome might be different when looking at the use that a campaign group might make of footage where its aims are necessarily partisan, may intend to cause harm to the target and are not controlled by any code of conduct.
The case also highlights the position of private investigators who collect any photographs or recordings without the consent of those featured enter complex legal territory and need to establish a lawful basis for that processing. Where the activity has been commissioned, the parties should establish who will bear legal responsibility for it in the event that everyone is sued. A claimant can pursue claims against all of those involved.
For further information about the issues that this case gives rise to, such as covert filming, actions of campaigning and protest groups or protection of employees’ privacy, please speak to a member of the Withers’ media and reputation team.