"Spare a thought for the BBC's legal team!" – cried no-one, when the Government announced last week that the BBC will have to reveal the names and salaries of its better paid employees from next year. But, perhaps a little sympathy is due, as the BBC's lawyers may find themselves burning some volumes of midnight oil in the coming months.
To recap – last week Thursday, Culture Secretary Karen Bradley revealed the draft of the BBC's next Royal Charter, due to come into force in early 2017. The next Charter includes a clause which requires the BBC to disclose the names and salaries (in £50k bands) of all its employees earning above £150,000. The big reveal will likely take place next summer when the BBC releases its 2017 annual report.
Since the announcement, there has been much debate over the ethics and expediency of the new clause – Claudia Winkleman is "all for" the disclosure, because BBC stars are "working for the public" and current (but soon to be former) BBC Trust Chairwoman, Rona Fairhead, expressed concern that the proposal "is not in the long-term interests of licence fee payers".
However, there has been little mention of everyone's favourite topic, the legal implications. Disclosure of presenters and employees' pay, without their consent, would be a gross infringement of privacy rights. It would also contravene data protection law and may also be a breach of confidentiality. The question of whether the BBC should be forced to disclose employee salaries may ultimately be a moot point if it transpires that, legally, it cannot.
It is well established in both English and European law (yes, still relevant – for now) that details about your financial affairs/income form part of your private life. For example - when the CJEU considered whether the Austrian public service broadcaster should be obliged to disclose the names and salaries of its employees, it noted in its finding that disclosure "by an employer of data by name relating to remuneration paid to his employee…to third parties….infringes the right of the persons concerned to respect for private life" (for those wanting to swot up, see the tongue twister: Rechnungshof (C-465/00) v Österreichischer Rundfunk).
Article 8 of the Human Rights Act says that "Everyone has the right to respect for his private and family life, his home and his correspondence". Everyone means everyone - and no, some people are not less "everyone" than others, not even celebrities, as the Supreme Court decision on PJS helpfully reminded us recently.
Salary information is also "personal data" for the purposes of the Data Protection Act. The BBC is the "data controller" of its employees' data and is required by the Act to process their data "fairly and lawfully". Is the disclosure of salary information without consent fair and lawful? No – according to the ICO, which has helpfully already looked at this very issue in the context of the disclosure of BBC employees' salaries.
In 2011, the ICO considered a case that arose out of a request made to the BBC under the Freedom of Information Act for salary information relating to 10 named individuals. The BBC refused the request, relying on s.40(2) FOIA, which exempts personal data from disclosure if that disclosure would breach the Data Protection Act. What is interesting about the case is that the ICO wrangled with the very issues that are likely to be thrown up by the draft Royal Charter's new transparency requirements.
In deciding whether the BBC was right to refuse disclosure, the Commissioner considered:
- the individuals' reasonable expectations of what would happen to their personal data;
- whether the information relates to their public or private life;
- whether the disclosure would cause unnecessary or unjustified damage to the individual; and
- the legitimate interest of the public in knowing the details of the individuals' salaries weighed against the effects of disclosure on those individuals.
Spoiler alert: the ICO decided in the BBC's favour
In making that finding, the ICO found that (i) an individual's salary concerns their private life and its disclosure would be "a disproportionate invasion into their right to privacy"; (ii) disclosure of the information would cause the individuals "damage and distress"; and (iii) as the BBC had already disclosed the exact salaries of its most senior executive team, that was sufficient "to allow the public to hold the BBC accountable for the financial decisions it has made".
Granted, ICO decisions are not the final word on data protection or indeed Article 8 matters. But, the decision offers a preview of the legal issues to be tried once the transparency requirements kick-in next year.
Interestingly, the ICO case was about individuals who did not have public facing roles. Some may argue that the privacy expectations of the BBC's star presenters are less "reasonable" than say, those who earn above £150k but work behind the scenes, e.g. as producers, journalists etc. But, being a public face does not automatically mean that you concede your right to a private life – not legally in any case. More is required to justify the infringement of an individual's right to privacy.
One argument may be that the disclosure is in the public interest - the Culture Secretary has advocated for the proposal on the grounds that it "produces value for money for the licence fee" and that "making the BBC more open and transparent will help deliver savings".
Or, the BBC might try to pass the buck to the DCMS once the new Charter comes into force on the basis that the salary disclosures were made "in accordance with the law" and therefore, pursuant to Article 8(2), no infringement of the right privacy has in fact occurred.
But the position is not clear cut. Section 3 of the Human Rights Act requires that all primary legislation (which would include the Charter) is interpreted "in a way which is compatible with the Convention rights". So, arguably, that would at least require the BBC to seek consent prior to the disclosure being made.
Further, there are also public interest arguments in favour of keeping that information private. The BBC has already expressed its concerns that publicising the salaries of its top talent will create a "poacher's-charter". After the announcement, BBC director general Tony Hall commented that the disclosure requirements will "not make it easier for the BBC to retain the talent the public love".
The BBC is a public service broadcaster – would disclosing salary information in fact ultimately diminish the public service the BBC offers? Leaving aside the loss of Bake Off or the thought – shudder – of a future where Poldark is interrupted by adverts, it is worth considering the impact on programmes such as Newsnight and Today if it were to lose not just its star anchors, but its best researchers and producers to competitors willing to pay more.
There has been chatter of "loop-holes" to the proposal. The clause requires disclosure of salaries paid by the licence-fee, so salaries paid by the BBC's commercial arm would not be caught. Some have therefore mused whether transparency under the new Charter mean transparency, in the way Brexit means Brexit. But, it would be safe to assume that in the coming months, efforts will be made to close up any such loop-holes before the new Charter comes into force.
During that time, lawyers for the BBC - and indeed, those of its stars - will likely be refreshing their knowledge of privacy and data protection law and double-checking employment contracts for pesky confidentiality clauses. Particularly, given that following the outcome of the Mirror Group phone hacking litigation, damages of over £250k could be up for grabs for infringement of privacy.
Sparing a thought for the BBC's lawyers may be asking too much. However, the transparency proposals do raise serious legal issues to be tried and so should give those in Government and the legal community some pause of thought.
Partner, Dispute Resolution London, UKView profile