Guest Post: Investigating allegations against celebrities: New standards for media corporations? The decision of the High Court in Richard v BBC

We are pleased to welcome back Dr Steve Foster, Principal Lecturer in Law at Coventry University Law School, who contributes the following guest post:

Introduction

In a long-awaited judgment on celebrity privacy and press freedom, in Richard v BBC [2018] EWHC 1837 (Ch), the High Court awarded over £200.000 in damages against the BBC for their coverage of police investigations into the activities of Sir Cliff Richard, who at the time was under suspicion of historical sex abuse. In doing so, the court held that as a matter of general principle, a suspect had a reasonable expectation of privacy in relation to a police investigation and that such an expectation was not removed merely because the information had reached the media. Accordingly, the BBC was liable to Sir Cliff Richard for infringing his privacy rights by broadcasting the fact that he was the subject of a police investigation and that his property was being searched in connection with the investigation.

This decision has excited a good deal of concern and criticism from the British press, who see the judgment as damaging to press freedom and the public right to know and who have described it an unwarranted development in the law’s effort to protect individual privacy from press reporting. The BBC has made it clear that they will appeal the decision, but for present purposes, this article will attempt to clarify the case in terms of its impact on broadcasting standards within the law of privacy

The facts and decision in Richard

The claimant, a well-known entertainer, claimed damages for breach of his right to privacy against the first defendant BBC and the second defendant police force (South Yorkshire Police). A BBC journalist had found out from a confidential source that the police force was investigating the claimant in respect of an allegation of historical sex abuse and the police had agreed to give the journalist advance notice of a search of the claimant’s English property. The BBC then revealed that the claimant was being investigated and produced numerous broadcasts of the search. Although the police investigation continued for two years, the claimant was never arrested or charged; and the police admitted liability and agreed to pay £400,000 in damages.

In giving judgment for a claimant, Mann J held that whether there was a reasonable expectation of privacy in a police investigation was a fact-sensitive question and was not capable of a universal answer: ZXC v Bloomberg LP [2017] EWHC 328 (QB). However, the starting point was that as a matter of general principle a suspect had a reasonable expectation of privacy in relation to a police investigation and that it was, as a general rule, not necessary for anyone outside the investigating force to know, as there were potentially damaging consequences of wider knowledge that an accusation had been made. The fact of an investigation would of itself generally carry some stigma: Khuja v Times Newspapers Ltd [2017] UKSC 49, and in relation to the police, the fact that there was a search by a public authority that had been authorized by the court did not, without more, remove the legitimate expectation of privacy. The quality of the information as being private could not, as a matter of principle, be affected by the nature of the recipient, and there was no basis for saying that a reasonable expectation of privacy was removed simply because the information had reached the hands of the media. Accordingly, in the court’s view, the claimant’s right to respect for private life under the article 8 ECHR was engaged.

In considering whether the claimant’s privacy rights were outweighed by the BBC’s right to freedom of expression the court stated that the consequences of a disclosure for a person such as the claimant were capable of being very serious and that reporting on the investigation and the search was a serious invasion which required an equally serious justification. Although there was a very significant public interest in the fact of police investigations into historic sex abuse, including the fact that they involved public figures, no public interest in identifying those persons existed in the instant case. Further, the impact of the invasion had been very materially increased by the nature of the BBC’s coverage, which had added drama and a degree of sensationalism.

Although a person who placed himself into the public life had a diminished expectation of privacy, that depended on the degree of voluntary surrender of privacy, the area of private life and the degree of intrusion: Axel Springer AG v Germany (39954/08) [2012] E.M.L.R. 15. The claimant’s well-known position as a Christian might make disclosures of actual unchristian conduct something to which he had rendered himself vulnerable by virtue of his public position, but unsubstantiated allegations or investigations were not in the same category. In this case it was very significant that the publication started with obviously private and sensitive information, obtained from someone who, to the BBC journalist’s knowledge, ought not to have revealed it, and confirmed or bolstered with a perceived threat by the journalist to the police that he would publish the story before the police search. Further, but of less weight, the claimant had not been given a fair opportunity for a statement or discussion before the broadcast; in the court’s view, in general, it would also be proper to give the subject some sort of opportunity to challenge publication before it happened, whether by persuasion or injunction.

On the matter of damages, the court noted that the claimant’s life was hugely affected for almost two years by the loss of public status and reputation, embarrassment, stress, upset and hurt, with some consequential health effects; all stemming from the BBC’s broadcasts. Further, the protection of reputation was part of the function of privacy law as well as defamation law and the disclosed information was extremely serious, and disclosure was made more serious, not more justifiable, by the claimant’s prominence. The court thus assessed general damages at £190,000, which in the judge’s view did not require modification to avoid having a chilling effect on the right to freedom of expression in addition, the fact that the BBC had submitted the broadcast for a television award, promoting its own infringing activity in a way that demonstrated that it was extremely proud of it, had caused additional distress and aggravated damages of £20,000 should be awarded

Considering categories of special damages, the court noted that the claimant had been exposed to the risk of further scurrilous publication or adverse publicity building on the original infringement. The legal costs incurred in dealing with other media interest, internet postings, and a threatened blackmail were part of a reasonable and justifiable attempt, targeted at a foreseeable event, to prevent the worsening of the claimant’s reputational position which had been caused by the BBC and was one of the things that privacy law was designed to protect. In the court’s view, advising on media presentations after the police decision not to charge should present recoverable loss, and further, it was reasonably foreseeable that a commercial opportunity that arose out of the exploitation of reputation, namely a book deal, could be lost if the reputation was sullied. Finally, with respect to the apportionment of damages between the BBC and the police, the court found that the BBC was the more potent causer of the claimant’s damage, and its breach was more significant. Accordingly, the damages for which both the BBC and the police were liable should be apportioned 65:35 as between the BBC and the police.

Assessing the impact of the judgment on privacy versus press freedom cases

Although the author has previously conceded the need for the law to accommodate responsible journalism and corporate social responsibility on behalf of the media in the article entitled “The media, corporate responsibility and TV reality shows“, a number of issues raised in this judgment will cause concern among the press and those interested in media freedom.

First, the judge appears to give very little accommodation to the fact that the claimant was a high profile individual who has attracted a great deal of publicity and public interest over a considerable period of time. Given the claimant’s profile, it could be argued that there was a natural and justifiable interest in the criminal investigation, and the BBC’s coverage of it; subject of course to any finding on the proportionality of its coverage. Instead, the court felt that his profile enhanced rather than limited his privacy expectations and the damage that was caused by the broadcast. Secondly, and related to the first concern, the court rejects the claim that the series of sex scandals and sex abuse investigations over the last three years or so provided a public interest strong enough for the BBC to rely on in broadcasting the story and breaching the claimant’s privacy. This appears to undermine the significance of the press’s role in uncovering these stories and the great public interest it has served in this area. To say that there was no public interest in the BBC’s reporting in this case seems bizarre; although that is not to deny that its tactics may have been disproportionate.

Thirdly, although the court admits that this area is case sensitive, the ruling that, as a general principle, individuals should be protected from revelations that they are under suspicion of criminal behaviour, appears to be over-generous to individual privacy, and damaging to the public right to know. Again, this is not to deny that those who reveal such details – the press or the police – must abide by responsible and professional standards. Yet to state as a general principle that such matters are usually the province of the police alone is to deny the role of the press in a democratic society that so relies on (responsible) investigative journalism for its information.

The amount of damages also gives rise to concern. Although not so high as to have a ‘chilling effect’ on the BBC or other media players, it is argued that it is sizeable given the profile of the claimant and the (dismissed) element of public interest in the story. Specifically, to include reputation damages in a privacy claim – where the defendant is not given the opportunity to put forward arguments on the meaning of the imputations or possible defences – seems unreasonable and unprincipled. To compound this, the court awarded special damages because the BBC put itself forward for a prize for the story; even though at the time it was still defending its right to report. Further, the court took into account the fact that the BBC did not pre-warn the claimant, providing him with an opportunity to challenge the broadcast, possibly by an injunction. Although damages can reflect this failure on the part of the press, this ruling comes close to offending the principle that the press should be not be obliged to pre-warn in privacy cases so as to prompt the claimant to bring an injunctive claim  (Mosely v United Kingdom (2011 53 EHRR 30). This is especially so given the court’s dismissal of press freedom and public interest in this case.

Whilst not taking exception with the overall decision in this case, there are certainly many aspects of it which will encourage an appeal from the BBC. Thus, whilst it is important that the courts encourage good corporate governance in the media, this judgment fails to balance that value with the basic principles of press freedom, freedom of speech and the public right to know.