Out-Law News | 20 Jul 2018 | 11:06 am | 4 min. read
The media will only be able to identify the individual in question if it can show that, on the facts of the case in question, its rights of freedom of expression and the public's right to know outweighs the privacy rights of the individual concerned.
David Barker of Pinsent Masons, the law firm behind Out-Law.com, who specialises in resolving media law disputes, said the finding "represents a significant development of the law in this area" and that it has "major implications for the media".
"Journalists will now need to consider carefully whether they can report information which comes into their hands, for example from anonymous sources, even where they have been able to confirm the accuracy of that information," Barker said.
"The judgment states that the expectation of privacy in these circumstances arises as a general principle rather than an absolute rule. Still, it’s questionable how the ruling will be applied in the myriad of situations in which a suspect may be investigated and arrested – not necessarily in that order – and subsequently charged or released. Many potential offences are committed in public and it is difficult to see how an expectation of privacy is workable in that situation. Similarly, the police will often want to talk with witnesses, or gather evidence in other ways which are quite visible to the public," he said.
"In context, this case represents part of a wider clash between the reporting of the criminal justice process and the rights of suspects and offenders. Other examples are the PNM/Khuja case where an individual named in a criminal trial wanted his identity remain secret, and the recent 'right to be forgotten' trials involving the removal from search engine results of material referring to the claimants’ criminal convictions," Barker said.
In the case considered by the High Court, Sir Cliff had raised complaint with the BBC's reporting of a police investigation into him in 2014 regarding alleged child sex abuse and the associated police search of his English home. The Crown Prosecution Service subsequently said in 2016 that it would not bring any charges against Sir Cliff after determining there was "insufficient evidence to prosecute".
According to the High Court's ruling, an unconfirmed source notified a BBC journalist about the police investigation into Sir Cliff and that the journalist subsequently confirmed with the investigating force the fact of that investigation. The BBC then reported the fact of the police's search of Sir Cliff's property which was the "trigger" for wider media coverage.
The BBC has said that it is considering appealing the ruling.
Mr Justice Mann considered a range of arguments raised by the parties in the case. He rejected the idea that a suspect's pre-existing legitimate expectation of privacy is removed when the police obtain a warrant to carry out a search of premises and said that the position is no different when the media becomes aware of that fact. The judge also determined that the fact Sir Cliff is a public figure did not automatically "lower" his expectations of privacy in this case, and gave guidance on when the media might legitimately report on the private matters of other public figures.
Mr Justice Mann said: "I accept that to a degree, and in certain circumstances, a person who has placed himself or herself into public life has a diminished expectation of privacy. That is because the very act of making certain aspects of oneself public means, by definition and by logic, that there is a corresponding loss of privacy in those areas which are made public. However, it does not follow that there is some sort of across the board diminution of the effect of privacy rights… It all depends on the extent of the self-induced publicity and the areas in which there has been, in effect, a sort of voluntary surrender. It depends on the degree of surrender, the area of private life involved and the degree of intrusion into the private life."
The BBC defended its reporting of the investigation into Sir Cliff as a matter that was of "legitimate public interest". However, Mr Justice Mann held that knowing Sir Cliff was under investigation "might be of interest to the gossip-mongers" but that it did not "contribute materially to the genuine public interest in the existence of police investigations in this area".
The judge considered the extent to which the police had cooperated with the BBC to help it prepare its coverage of the investigation and of the property search. He criticised the BBC's method of obtaining the information for its story and with the way it provided Sir Cliff with a right to reply. He said the "very serious" consequences for Sir Cliff of the disclosure of the police investigation into him were amplified by the BBC's style of reporting, which included helicopter footage of the police search.
"A lower key report of the search and investigation (for example, done merely by a measured reading of the relevant facts by a presenter in the studio) would, on my findings be a serious infringement, and would not be outweighed by the BBC's rights of freedom of expression," Mr Justice Mann said. "What the BBC did was more than that. It added drama and a degree of sensationalism (and not just pictorial verification) by the nature of its coverage. The impact of the invasion was, in my view, very materially increased."
Mr Justice Mann concluded that the BBC was responsible for a "very serious invasion of privacy rights, which had a very adverse effect on an individual with a high public profile and which was aggravated". He awarded Sir Cliff £210,000 in damages to account for that privacy infringement.
In a statement, the BBC said that it is considering an appeal against the ruling.
Fran Unsworth, director of news and current affairs at the BBC, said: "This judgment creates new case law and represents a dramatic shift against press freedom and the long-standing ability of journalists to report on police investigations, which in some cases has led to further complainants coming forward. This impacts not just the BBC, but every media organisation."
"This isn’t just about reporting on individuals. It means police investigations, and searches of people’s homes, could go unreported and unscrutinised. It will make it harder to scrutinise the conduct of the police and we fear it will undermine the wider principle of the public’s right to know. It will put decision-making in the hands of the police. We don’t believe this is compatible with liberty and press freedoms; something that has been at the heart of this country for generations. For all of these reasons, there is a significant principle at stake. That is why the BBC is looking at an appeal," she said.