Sir Cliff Richard OBE is awarded an unprecedented and highest award in this area of law

18 July 2018

Author: Olivia O'Kane
Practice Area: Media and Defamation

O_okane

1. Unprecedented privacy damages

Today Mr Justice Mann awarded £210,000 privacy damages after finding that Sir Cliff’s privacy rights had been infringed when the BBC broadcast live a police raid of his home in Berkshire in August 2014.

The BBC named Sir Cliff as a criminal suspect when reporting the raid live both on the ground and aerial footage shot from a helicopter. The story was reported all around the world. In 2016 it was announced that no charges would be bright against Sir Cliff and exonerated him of any wrong doing.

As a matter of law, the court held that Sir Cliff had a reasonable expectation of privacy in relation to the police investigation including the search of his home and further held that the BBC’s public interest defence failed on the circumstances of this case.

2. Sir Cliff Richard OBE –v- BBC and South Yorkshire Police [2018] EWHC 1837

Today’s decision undoubtedly marks a shift toward privacy rights protection. Sir Cliff claimed substantial damages because his life and finances had been radically affected by the broadcast. Sir Cliff gave compelling evidence about the distress he suffered and the court found that the thinking on the day regarding the decision to broadcast was affected by a desire to protect ‘the scoop’.

The judgement is very detailed running to 122 pages. Paragraphs 96 – 114, refers in general to difficult editorial decisions when editors decide whether to publish information about police investigations prior to persons being charged and the decision making process generally about stories that fell within public interest categories. At paragraph 115 the judge determined that the tone of the broadcasts had a significant degree of dramatic urgency which was somewhat sensationalist, significantly contributed to by the helicopter coverage as well as the ticker and breaking news banner. Paragraphs 115 – 141 describe the coverage in detail and note that there were 3.2 million viewers. Paragraph 153 – 159 describe the immediate aftermath for Sir Cliff. The judge’s findings of facts are enumerated at paragraphs 162 – 224. The issues for the court to determine are explained at paragraphs 225-226. The law of privacy and of the right to freedom of expression is explained at paragraphs 227-238.

At paragraphs 239 – 247, the judge records some of the factors he took into consideration when deciding whether a police investigation attracts a reasonable expectation of privacy. At paragraph 248 he stated that as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation. He went on to state that the presumption of innocence is not generally understood by everyone, that the general public are not universally completely open to the view that persons investigated are innocent until convicted. He considered that the fact of an investigation will carry some stigma no matter how often it is said that it should not. He observed that some members of the public would wrongly equate suspicion with guilt.

Notably at paragraph 251 the judge acknowledges that there is not an invariable right to privacy and there may be all sorts of reasons on a case with different facts that would result in no such reasonable expectation of privacy and a reason to displace such a general rule. The judge also remarked that there were no distinguishing features about Sir Cliff’s public persona that dislodged his reasonable expectation of privacy. At paragraph 259 the judge rejected the argument that when information about a police investigation is passed from the police to the media, it loses that reasonable expectation of privacy. As such the court concerned itself only with whether the media’s intrusion into that privacy was justified in pursuance of the right to freedom of expression. The balancing of rights between the private life of Sir Cliff and the right to freedom of experience was undertaken by the court at paragraphs 262 –314.

The judge accepted at paragraph 281 that the information about the investigation contributed to a debate of general public interest. However, he goes on to state that identifying the subject of that investigation was not in the public interest. The judge went on to recognise that in certain circumstances a person who has placed himself into the public domain might have a diminished expectation of privacy, but on these facts Sir Cliff did not. The court went on to comment upon the method of the investigation and in particular at paragraph 301 the court stated: “the BBC went in for an invasion of Sir Cliff’s privacy rights in a big way”. At paragraph 292 the court recognises that there are also circumstances when journalistic subterfuge can be justified. Paragraphs 315 – 323 summarise the judge’s reasoning as to why Sir Cliff’s privacy rights outweighed the BBC’s right to freedom of expression, which included the seriousness of the disclosure, the style of reporting employed, the filming and ultimately finding that the BBC is liable for infringing Sir Cliff’s privacy rights when it broadcast the fact that he was the subject of an investigation for historic sexual abuse, that his property was being searched.

In assessing what award to make the judge described Sir Cliff’s hurt and damage at paragraphs 326-369, awarding him £210,000.00 in respect of a very serious invasion of privacy rights which had a very adverse effect on an individual. The court held that it considered this case as much more serious than Mosley and worthy of a much greater sum of damages. He awarded £190,000 in respect of general damages and a further £20,000.00 to reflect aggravated damages in respect of arguably exceptional and specific unusual aggravating factors.

3. Traditional privacy damages

In Northern Ireland traditionally straight forward privacy complaints have been restricted to the County Court monetary jurisdiction which has a monetary limit so that damages do not exceed £30,000.00.

When the Human Rights Act 1998 incorporated the European Convention on Human Rights into UK law, it created a new right to privacy for UK citizens.

The first landmark privacy case following the Human Rights Act was Naomi Campbell v MGN Limited 2002, in which the Court of Appeal awarded her £2500 for revealing details about her drug rehabilitation.

Another case in 2005 concerning Douglas and Jones –v- Hello Limited, revealing private details about their wedding resulted in a privacy damages award of £3750.00.

All of those damages awards had been in line with Strasbourg decision at the European Court of Human Rights and also in line with the awards in our courts for pain and suffering in personal injury cases.

Those cases tended to be one off publications.

4. Exceptional Cases

The only departure from these nominal level damages was in 2008, when Max Mosley sued the News of the World for a gross invasion of his privacy revealing out of the ordinary and deeply sensitive details about him resulting in an award of £60,000.00 which at that time had been an unprecedented level of damages in a privacy case. It should be noted that the European Court of Human Rights described the journalism in Mosley as lurid news, intended to titillate and entertain.

In recent years, the only departure from these levels damages came about after the ‘Phone Hacking’ revelations.

Those privacy awards were unusually high to reflect the criminality and unethical conduct involved in the news gathering techniques. People’s mobile phones had been hacked and listened into and private information was disclosed repeatedly, which understandably caused substantial distress to complainants. The awards in those cases ranged between £72,000 and £260,250.

The high level of damages reflected the years of distress, upset and suffering that was sustained by those who had wrongly had their phones hacked. A group of famous personalities took a case (Gulati v MGN) against a newspaper which involved the highest award of £260,250 a judgment also delivered by Mann J. In those cases, there had been repeated articles for prolonged periods and sustained abuse of private information.

In the hacking cases Mann J considered that compensation should truly reflect the privacy infringement as well as awarding compensation. The phone hacking cases set judicial cognisance for the level of damages to reflect the degree of infringement, the period of time and the manner in how the privacy right was infringed. So the number of times a person’s phone was unlawfully hacked, over how long and how much information was wrongly obtained were all important factors in assessing the level of damages to award.

The phone hacking cases were a departure from the usual privacy damages award and all of the phone hacking cases involved exceptional circumstances of criminality and the complainants giving evidence about serious distress and suffering for prolonged periods of time.

5. BBC’s decision to Appeal on the general legal principle of ‘freedom of expression to report on matters of public interest’

The BBC’s director today stated that the BBC was sorry for the distress and understands the serious impact upon Sir Cliff. The BBC further acknowledged that with hindsight there were things it would do differently.

The judge noted that everything broadcast by the BBC was accurate.

The court held however, that if there had been no broadcast of the search and the story had less prominence the very naming of a person prior to being charged would have been unlawful.

The BBC considers that this creates a significant shift against press freedom. In its view it would mean that police investigations and searches of people’s homes could go unreported and unscrutinised. It puts decision making about naming persons under investigations in the hands of the police, who in turn might be nervous about being sued if they did name pre charge or pre conviction, and makes the public’s right to know about persons being investigated for serious crimes less important. The public will never know about investigations of those never charged. The BBC believe that this aspect of the judgment is incompatible with the general legal principle of press freedom to report in the public interest. For all of those reasons the BBC is appealing the decision because of the important principle of press freedom being at stake.

The BBC considered that it’s long standing right to press freedom to report the truth about police investigations whilst respecting the presumption of innocence is an important principle at stake and that the judgment could discourage the press from disseminating information on matters of legitimate public concern, even if those investigated are ultimately exonerated as Sir Cliff was. The appeal is centred on general principles of law and not about the specific facts of this case.

For instance, in the case of Axel Springer [2012] the Strasbourg court observed that the public in principle have an interest in being informed and being able to inform themselves about criminal proceedings so long as the presumption of innocence is protected. Over the years the courts have analysed these legal principles, and it has been held in some cases that the media report must be capable of contributing to a debate of public interest and not whether it actually achieves this objective in full.

6. Press Freedom generally and chilling effects

This judgment deals with the media’s right to freedom of expression in relation to significant matters of public interest, namely public interest journalism reporting about criminal investigations.

There could be no reasonable argument to justify phone hacking which is criminal and unethical. For that reason, unprecedented privacy awards for prolonged periods of distress and repeated privacy infringements arising from phone hacking is not surprising. The law established that the media can only claim full protection of the Article 10 right to freedom of expression if it observes journalistic duties and responsibilities.

Any court ruling that enhances privacy rights of persons subjected to criminal investigations prior to being charged engages the media’s right to freedom of expression and could have a chilling effect on public interest journalism.

Public interest journalism kick starts public debate on issues of serious importance. The media has a “vital function as a bloodhound as well as a watchdog”.

Journalists act as public watchdog and should be able to pursue difficult public interest stories without fear of reprimand. Where the overall public interest in what a journalist is trying to achieve outweighs the overall privacy infringement they should be protected in accordance with freedom of expression laws.

Any chilling effect might result in fewer journalistic investigations even when there are reasonable grounds to suspect criminality these would not be brought to the attention of the public for fear of litigation.

Outside of this case, in general terms there is an important legal principle about the media’s right to report about matters of serious public interest prior to criminal investigations. Media reports can and have in the past led to a criminal investigations or even prosecutions; or reporting about ongoing criminal investigations can result in witnesses or victims coming forward.

The media and investigative journalism play a crucial role in bringing allegations of corruption, criminality or foul play into the spotlight. The media often referred to as the Fourth Estate, are fundamental to a democratic society in providing a free and independent eye into investigations of misconduct and providing a free independent free voice reporting to citizens. The freedom of the press is a fundamental human right protected by the Human Rights Act 1998 as well as by various international treaties such as the European Convention on Human Rights, Universal Declaration of Human Rights and International Covenants on Civil rights and Declarations on Freedom of Expression. These treaties also provide privacy rights protection. The role of the courts is to balance an individual’s right to a private life and weigh that right against the right to report about matters pf public interest.

Police forces have been investigating allegations of serious crime since the nineteenth century and all of this time Parliament has left the press free to report on such matters without any form of legislative restriction. Historically the legal constraint on the media has been the general law of libel. If a report was published that failed to respect the presumption of innocence a defamation claim could be brought seeking redress for damage to reputation.

There are many instances of investigative journalism that have involved the media’s right to freedom of expression and reporting about matters of serious public interest at investigation stages prior to any charges or convictions which ultimately led to prosecutions. For example;

  • The parliamentary expenses scandal in 2009 concerning expenses claims was revealed by a piece of investigative journalism in the Daily Telegraph.
  • The Guardian revealed information about air strikes on civilians and controversial issues about the Afghan war.
  • The Guardian revealed Edward Snowdon’s leaks about surveillance and spying techniques used in smart phones and computers.
  • ITVs revelations about the Jimmy Savile sexual abuse scandal.
  • The Panama Papers investigation was collectively revealed by media organisations worldwide.
  • The BBC NI revealed the Renewable Heat Incentive scandal which has been reported to cost the public purse almost £500 million.
  • The media’s revelations about historical sexual abuse scandals in various institutions such as Churches, Boys Home’s and elsewhere.
  • The media’s revelations on NAMA.

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