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Cliff Richard privacy claim: Court does not depart from case law that suspect in an investigation has reasonable expectation of privacy

03/08/2018
Sir Cliff Richard ("Sir Cliff") has been awarded damages of £210,000 for the infringement of his right to privacy. The court decision confirms that where confidential information about a police investigation is leaked to the media, an individual has a reasonable expectation of privacy.

By Amy Whitney, Trainee Solicitor

Sir Cliff Richard v BBC and anor

Sir Cliff Richard ("Sir Cliff") has been awarded damages of £210,000 for the infringement of his right to privacy. The court decision confirms that where confidential information about a police investigation is leaked to the media, an individual has a reasonable expectation of privacy. Even where a public figure is involved, public interest arguments available to the media when publishing information about individuals involved in an investigation may not outweigh that individual's right to privacy.

Background

The BBC obtained information from a confidential source that Sir Cliff was the subject of a police investigation into historical sex abuse. The South Yorkshire Police gave the BBC notice in advance of a search of Sir Cliff's personal property. The police provided the BBC with this information for fear that there would be a publication by the BBC prior to search of the property. The BBC broadcast that Sir Cliff was the subject of an investigation and covered the police search of Sir Cliff's property in various broadcasts in August 2014.

The Law

An applicant seeking an injunction or damages for misuse of private information under UK law will need to show that he or she has a reasonable expectation of privacy in the circumstances. If it is determined that the applicant has a reasonable expectation of privacy, the court will then be required to balance the two competing rights in issue: the applicant’s right of respect for private and family life under Article 8 of the Human Rights Act and the publisher’s right to freedom of expression under Article 10. Neither right takes precedence over the other and resolution of the conflict requires an “intense focus on the facts” as per the test set out in McKennitt v Ash.

Judgment

(i) Legitimate expectation of privacy

On the facts at issue in this case, Mr Justice Mann held that "as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation". He determined that this expectation is not eliminated, even where the information has reached the media. In these circumstances, Sir Cliff had a legitimate expectation of privacy in relation to the ongoing investigation and in relation to the search of his property. The fact that a search was conducted by a public authority, which was authorised by the court, did not extinguish that expectation.

(ii) Art.8 right to privacy versus Art.10 freedom of expression

Having determined that Sir Cliff had a reasonable expectation of privacy, Mr Justice Mann held that Sir Cliff's right to privacy was not outweighed by the BBC's right to freedom of expression under Article 10 of the Human Rights Act. The broadcasting of the investigation by the BBC and consequential search of the property increased the degree of intrusion on Sir Cliff's right to privacy. The judge determined that it was especially significant that Sir Cliff was not given the opportunity to release a public statement before the broadcast or challenge the publication before it happened, whether by discussion or injunction.

The judge also determined that the BBC's particular means of broadcasting the story (including the use of a helicopter to take footage over Sir Cliff's property) "to add further colour and sensationalism" exacerbated the level of intrusion.

Although there was a significant public interest in the investigation into historical sex abuse, the judge held that there was no public interest in identifying the figures involved in the investigation. Even though the investigation may be of significant public interest, the publication of Sir Cliff's identity did not contribute to a discussion of general interest: "Knowing that Sir Cliff was under investigation might be of interest to the gossip-mongers, but it does not contribute materially to the genuine public interest in the existence of police investigations in this area". In this respect, the judge believed that if the presumption of innocence was a principle steadfastly adhered to by the general public then the position would be different, but that, sadly, is not the case and there is a risk of 'taint' solely on the basis of an individual being investigated.

Damages

The court ordered general damages to be paid as well as aggravated damages, totalling £210,000. The court awarded general damages of £190,000, due to Sir Cliff's loss of reputation and public status. The court also awarded aggravated damages of £20,000, as the BBC submitted the broadcast for the "Scoop of the Year" award, adding to the distress caused. A further hearing is scheduled to assess special damages for the reasonably foreseeable loss flowing from the breach of Cliff Richard's right to privacy, which may be significant given that Sir Cliff will seek to argue that the cancellation of an album release and his autobiography all flowed from the breach.

Comment

The BBC issued a statement decrying decision in which it said that: "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 investigation".

As unpalatable to the media as this decision may be, it is not entirely new case law, nor is it a dramatic shift. The Court has been moving towards a definitive determination that individuals who are under criminal investigation may have a reasonable expectation of privacy for the past few years (see our past article in this respect here).

In PNM v Times Newspapers Ltd Lady Justice Sharp acknowledged "a growing recognition that as a matter of public policy, the identity of those arrested or suspected of a crime should not be released to the public save in exceptional and clearly defined circumstances", although this statement was obiter. The issue was more expressly addressed in ERY v Associated Newspapers Ltd [2017] EMLR 9 where Mr Justice Nicol held that there was a reasonable expectation of privacy in the information that a person was being investigated by the police (although in these particular circumstances it proceeded on the concession that the claimant had been interviewed under caution).

ERY was closely followed by ZXC v Bloomberg LP. In that case the claimant sought an interim injunction to restrain publication of the fact that he was the subject of an investigation by a law enforcement agency. The Defendant's source for this article was based on a "confidential law enforcement document". The judge identified a number of features in that case (including the confidentiality of the document and the fact that it came into the hands of the defendant via an unauthorised leak) which led him to the conclusion that the claimant would reasonably have expected the document to remain private to both the law enforcement agency and the other party receiving it. Ultimately an injunction was not granted owing to other factual circumstances, notably that the investigation of ZXC was already in the public domain for three years prior and ZXC had done nothing to restrain that publication in those preceding years.

The Richard case is effectively a continuation of the jurisprudence set out in ERY and ZXC. The main difference in Richard is that the claimant is a well-known public figure. The case ultimately confirms that the court is recognizant of the fact that individuals have a reasonable expectation of privacy, not just in relation to arrest or police interview, but also during an investigation. It also acknowledges that there is a public interest in large scale investigations of serious offences.

In order to be in the public interest the publishing of the identity of suspects must contribute materially to a discussion, which is in the genuine public interest. The case highlights the need for the media to consider an individual's right to privacy under Art. 8 versus the media's right to freedom of expression under Art.10 when reporting and broadcasting on a police investigation. This is likely to limit the press reporting on police investigations and the identification of individuals that are the subject of those investigations.

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