Out-Law News 3 min. read
11 Apr 2013, 11:10 am
The communications regulator said that Yorkshire Radio's right to broadcast the information, which was disclosed in comments made by Leeds United Football Club (LUFC) chairman Ken Bates, did not outweigh the "legitimate expectation of privacy" that Gary Cooper, Leeds United Supporters’ Trust (LUS Trust) chairman, had.
In two interviews broadcast live by Yorkshire Radio in February 2012, Bates had reacted to criticism that had been levelled at the management of Leeds United by LUS Trust.
In the programmes Bates said he had looked up the club's computer systems to check Cooper's attendance record at matches and said that he had found evidence that Cooper had not attended any games during the previous season and that Cooper had informed him that this was down to "family commitments". Bates questioned whether Cooper's attendance record made him a "justified or qualified" spokesperson for the "ordinary fan". Cooper had claimed on LUS Trust's website that he was a regular at Leeds United home matches.
Bates also revealed that he understood Cooper to be an IT technician and that, as a result, Cooper had "never had to run a business and make a profit and be accountable".
Cooper complained to Ofcom about the programmes. He said that he, and LUS Trust, had been "treated unjustly or unfairly" and that his own privacy had been "unwarrantably infringed" because Bates had searched LUFC's database for personal information about him and disclosed the details on air.
Ofcom determined that Bates was "in a position to be able to exert a degree of influence or control over the radio station" and that he was a "central and influential figure in the management structure of Yorkshire Radio at the time the programmes were broadcast". This, it said, was owing to the fact that Bates, with his wife, owned the majority shareholding in a business that itself owned 95% of Yorkshire Radio at the time of the broadcasts.
In light of this arrangement Ofcom said that Yorkshire Radio had not done enough during the interviews with Bates to challenge the comments he was making or the methods he had used to uncover personal information about Cooper. In addition, the regulator said the station had failed to adhere to the Broadcasting Code because it had not given Cooper a "sufficient" means through which to respond to the comments about him and the Trust. This was a failure to "ensure that it avoided unjust or unfair treatment of individuals and organisations" in its programmes, Ofcom ruled.
The regulator also ruled that Yorkshire Radio had unjustly infringed Cooper's privacy, (124-page / 1.24MB PDF) dismissing an appeal by the station not to "fetter" its right to freedom of expression. The station had said that doing so would not be "proportionate or necessary" to do so. It further argued that it was in the public interest for it to broadcast details of Cooper's attendance record at Leeds United matches because the details "concerned whether [Cooper, as LUS Trust chairman,] ... had any authority to represent the views of ordinary fans of Leeds United".
However, Ofcom said that individuals whose details are stored on a database for a specific purpose would generally have "an expectation" that the information would not be accessed for the purpose of discrediting them.
Although the information about Cooper's attendance record at matches was "not information that could be reasonably considered as being particularly sensitive or private in nature", it was not "readily available" and was still personal data on a database to which Cooper had a "legitimate expectation of privacy". This expectation of privacy was "warranted" because the radio station's competing right to freedom of expression did not outweigh it.
Ofcom said Bates had unfairly exploited his position at Leeds United to obtain the information about Cooper from the club's database in order to use it to discredit Cooper. It said that Yorkshire Radio's subsequent broadcasting of the information was also an unwarranted breach of Cooper's privacy, rejecting Yorkshire Radio's claims that there was an overriding public interest in revealing an apparent "inaccuracy" in the claims made by Cooper about his attendance record at games.
"The purpose and intention behind Mr Bates’ disclosure of this information was to discredit Mr Cooper in his position of chairman of the LUS Trust and that it had been obtained by Mr Bates for this purpose," Ofcom said. "In Ofcom’s view, there was no justification for Mr Bates using his position as Chairman of LUFC (nor for using his control over Yorkshire Radio) to broadcast the information for the purpose of discrediting Mr Cooper by means of critical comments made in broadcast interviews on Yorkshire Radio."
"For these reasons, Ofcom considered that the broadcast of this information by Mr Bates in the two programmes was a disproportionate interference with Mr Cooper’s expectation of privacy and it was not warranted," it said.
