A fortnight ago, Sir Cliff Richard succeeded in his claim against the BBC over its coverage of a police raid of his home. Sir Cliff was awarded £210,000 – an unprecedented figure for a privacy case.
In his judgment, Mr Justice Mann found that Sir Cliff’s privacy rights were “seriously infringed” by the BBC. Here, James Williams in our Commercial Disputes team, explores what this case means for privacy rights across the board.
In Sir Cliff’s case, Mr Justice Mann determined that, as a matter of general principle, a suspect had a reasonable expectation of privacy in relation to a police investigation. He believed that this expectation couldn’t be removed by virtue of a search by a public authority, that had been authorised by the Court. Similarly, it could not be eroded simply because Sir Cliff was a public figure.
The Court determined that Sir Cliff’s decision to make certain aspects of his life public did not mean that there should be an across the board diminution of his privacy rights. Mr Mann held that knowing Sir Cliff was under investigation "might be of interest to the gossip-mongers… [but that did not] contribute materially to the genuine public interest in the existence of police investigations in this area".
These comments are particularly interesting, even more so when re-visiting the judgment in Rio Ferdinand v MGN Ltd.
In this judgment, the Hon. Mr Justice Nicol maintained that there was a public interest in the Sunday Mirror’s reporting of Mr Ferdinand’s extra-marital affair, given that Mr Ferdinand had recently been appointed captain of the England national football team – a position that “carried with it an expectation of high standards” to be a “role model”.
In light of Mr Mann’s recent comments, could the same be said about “gossip-mongers” and public interest in this case? After all, Mr Ferdinand’s decision to undertake an ambassadorial and playing role with a national football team did not give unfettered permission for the media to report on all aspects of his life or to erode his privacy rights.
Ultimately, the question of privacy is a fact-sensitive question. In contrast with the Sir Cliff case, Justice Nicol’s decision took into account the ‘Rio Reformed’ interview, in which Mr Ferdinand stated he was a “reformed family man” who left his “wild man ways” behind – something Justice Nicol believed could have the potential to be perceived as misleading to the public, in light of the Sunday Mirror’s reports.
Mr Mann’s judgment shifts the judicial balance between the media’s Article 10 right to inform readers and the public about a factual situation, and an individual’s Article 8 right to enjoy privacy.
This means that the media are only able to identify a suspect subject to a police investigation if they can show that their rights of freedom of expression, and the public’s right to know, outweigh the privacy rights of the individual concerned. This means that journalists will need to not only confirm the accuracy of the information derived from their sources, but also weigh up whether to publish an individual’s identity, in light of the right to privacy.
Mr Mann noted that the BBC’s coverage of the investigation was “sensationalist”. An interesting limb of the judgment was that, even if the BBC had not used helicopter shots, or run the story with less prominence – perhaps in a studio with a subdued environment – the story would have still been unlawful, despite its accuracy.
Both the BBC and other media outlets have criticised this. Leading news sources, like The Guardian and The Telegraph, have labelled the matter a “terrible precedent”, which represents a “serious blow to press freedom”.
The BBC believe that this judgment means that police investigation, and searches of people’s homes, could go unreported and unscrutinised. This could not only make it more difficult to scrutinise the conduct of the police but may “undermine the wider principle of the public’s right to know”. The BBC have indicated that they will seek to appeal Mr Mann’s decision.
Sir Cliff Richard has won his privacy case against the BBC over its coverage of a police raid on his home. High Court judge Mr Justice Mann awarded an initial £210,000 in damages. The singer claimed the BBC's reporting of the 2014 raid, which was part of an investigation into historical child sex allegations, was a "serious invasion" of privacy. He was never arrested or charged. The BBC said journalists acted in good faith and it is considering an appeal. Speaking outside the High Court in London, the BBC's director of news and current affairs Fran Unsworth apologised to Sir Cliff and said: "In retrospect, there are things we would have done differently." But, she said, the case marked a "significant shift" against press freedom and an "important principle" around the public's right to know was at stake.