Much has been written over the last 10 days or so about Sir Cliff Richard’s successful claim against the BBC. For working journalists, the implications of still being worked through, and in some ways, it’s arguable that Mr. Justice Mann’s judgment has simply muddied the waters.
A number of issues in particular appear to be worth highlighting
1. Pre-arrest and pre-charge reporting
Many commentators, including the Society of Editors, have expressed concern that the judgment means the ability of journalists to identify those who are being investigated by the police before arrest and/or charge, is now greatly inhibited.
Interestingly, however, the Judge himself does not.
At a follow-up hearing last Thursday, Mr. Justice Mann expressed concern about the way his judgment had been interpreted. He raised the issue of the “erroneous reading” of his ruling and said: “It is simply wrong to suggest there is now some blanket restriction on reporting investigations”.
This is consistent with an unequivocal statement in the judgment: “…whether or not there is a reasonable expectation of privacy in a police investigation is a fact sensitive question and is not capable of a universal answer one way or the other”.
But that clear statement of principle was followed by this: “It seems to me that on the authorities, and as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation, and I so rule.”
How can these two statements of principle be reconciled? It’s certainly the case the latter ruling that has caused so much concern to journalists, but clearly, the Judge sees nothing radical in that statement.
And yet he is obviously concerned about the way his decision is being interpreted, concerned enough to issue a pretty unusual follow-up clarification.
So where does this leave us? It’s not clear. The problem is that journalists (and their lawyers) have to follow the law as interpreted by, and contained in, the judgment.
But was that judgment as certain and as clear as working journalists would like? Only time will tell. Hopefully, in any appeal, this particular aspect of the judgment will be clarified.
2. Privacy v. Libel
Deep in the judgment, Mann J introduced a new concept, that “a function of privacy law is the protection of reputation” (traditionally the function of defamation law).
Therefore, he decided, the Court can award damages in respect of that loss of reputation. As we all know, this is precisely what he did.
This new concept is important, because it’s a strong encouragement for Claimants to bring privacy rather than libel claims wherever possible.
And why is that significant? Because in privacy claims, Claimants are not required to prove that their reputations have suffered “serious harm, or a likelihood of serious harm [was created]“.
In other words, in certain cases (depending on the facts), it seems the whole purpose of the ‘serious harm’ threshold, as introduced by section 1 of the Defamation Act 2013, will be circumvented.
3. Cause and effect
The BBC made an important concession during the trial, which Mr. Justice Man obviously accepted.
The concession relates to causation. As result, the Judge held that if a publisher commits a breach of privacy:
a. the level of damages are unaffected by anyone’ else’s publications (unlike in libel); and
b. the publisher is responsible for any wider publicity that is given to the story by itself and by others (my emphasis).
Accordingly, if you write and publish a scoop that turns out to infringe the subject’s privacy, and if your exclusive is picked up by the rest of the press, then you and your publisher, as the originator of the story, will be penalised for the work of other publications and broadcasters, even though you have nothing to do with them, and have no control or influence over their output.
Does that prospect create a chilling effect on freedom of expression? The answer is obviously ‘yes’.
4. IPSO and the Editors Code
Readers will know that clause 2 i) of the Code mirrors the law by providing that:
Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications
To some commentators, Sir Cliff’s success has changed nothing, and it’s certainly the case that the clause 2 i) does not need to be revised.
Similarly, 2 ii) of the Code, on the face of it, does not need to be amended:
Editors will be expected to justify intrusions into any individual’s private life without consent. In considering an individual’s reasonable expectation of privacy, account will be taken of the complainant’s own public disclosures of information and the extent to which the material complained about is already in the public domain or will become so.
What will need to change, however, is the way in which these clauses are interpreted both by publishers and IPSO.
It seems likely that as a result of Sir Cliff’s success, the burden on members of IPSO has just become significantly greater. It’s not unrealistic to predict that disgruntled individuals who are under police investigation, will flood IPSO with privacy complaints.
And if that happens, challenging times lie ahead for IPSO’s Complaints Committee!
And finally, we turn to the issue of legal costs.
Having been ordered to pay damages totalling £210,000 to Sir Cliff, last week the BBC also agreed to make an interim payment to him of £865,000 in respect of his legal fees. Huge though this number is, the final bill will be much higher. During the trial, Sir Cliff said he had spent more than £3m on the case. And we will never know the size of the BBC’s own legal fees.
And it’s been reported that the BBC is going to pay £315,000 to South Yorkshire Police, for their legal costs.
As ever, the final costs bill will dwarf the damages. From a commercial perspective, it’s this which will concentrate the minds of publishers, especially at regional and local level.
All in all, Sir Cliff’s success makes sobering reading for journalists and publishers. The rise of privacy trumping freedom of expression continues apace – unless the Court of Appeal intervenes.
Footnote – sobering thoughts following a YouGov poll which was published last week.
It turns out that 86% of our fellow citizens believe that a person who is under investigation, but who has not been arrested or charged, should be entitled to privacy (i.e. anonymity). 83% think that an arrested person should not be identified before charge. And 60% think that between charge and trial, the defendant should not be identified.
Even more astonishing – 62% think that a defendant who is on trial should be not be identified unless and until found guilty.
Open justice? It seems that those polled don’t much care for it.
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Footnote – £865,000 in respect of his legal fees; £315,000 to South Yorkshire Police, for their legal costs.
Hmmmmm looks like it’s a win/win situation for the beaks and briefs then.
I’ll get me coat……….
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The ruling is an absurdity and the refusal of permission to appeal is despicable.
Sir Cliff’s property, located in a busy apartment building, was descended on by dozens of police officers, some of them in forensic garb, who spent the day traipsing in and out of the building, removing items from his apartment in evidence bags and placing them in police cars. This was conspicuous police activity and thus, everyone in the building was immediately alerted to the raid – as was anybody who lived in a neighbouring property or indeed anybody who just happened to walk or drive past while the raid was in progress. Given that it lasted for hours, that is potentially thousands of people alerted to the raid.
By saying that the BBC shouldn’t have identified Sir Cliff, the judge is effectively saying that the BBC couldn’t carry any coverage of the raid at all, because to identify the address would have identified the star. So what the judge has therefore ruled is that the BBC should have been completely banned from reporting on extremely conspicuous police activity, being conducted in full view of thousands of members of the public.
What an utter disgrace. It’s positively Orwellian.
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“Open justice? It seems that those polled don’t much care for it.”
But you can bet they’ll change their tune on secret courts/private justice when they find out the next-door neighbour they’ve been letting their kids play with every weekend has been awaiting trial for child molestation for the last year.
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Sorry to disagree, I am laying aside my hack background , dead keen for a good story, to look at this from the other side of the newsdesk.
Put yourself in the place of Cliff Richard, not the news editor. No proof against Cliff. No charges. But his name linked forever with what society rightly regards as a serious crime.
Famous or not, would you want that for the rest of YOUR life?
The argument about publishing details just because it happened is spurious. If local people are interested and want to make wild guesses , well let them.
But to publish details wider is grossy unfair ON ANY HUMAN BEING.
Why? Because in today’s cruel and knee-jerk society “being investigated” means guilty. Even if, like Cliff Richard, they are not.
Being charged means much the same thing, sadly. Social media in particular with its sewer trolls has twisted it all around to say you are guilty until proven innocent. That’s not the way our country used to be.
It is simple really. Police investigations against people who have not been charged should not be disclosed to the media.
The fact the public might be interested is of no weight, nor the fact that it is just a good story. Reputations can be ruined by someone sitting cosily behind a keyboard.
I don’t buy the argument that publicity brings forward more victims or witnesses. Perhaps it does , perhaps it doesn’t. But that is not the point. No police force should tarnish someone’s name just to publicise a mere investigation. They should do their own homework, then release a name if someone is charged.
If you think that is a restriction on our blessed much-trumpeted press freedom ask yourself: What if it was you, an innocent party on the receiving end?
While I am at it, why has no-one at the BBC been sacked for this dreadful and expensive error of judgement?
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Nobody has been sacked, paperboy, because nobody did anything wrong. The story was both accurate and entirely legal. This ruling is precedent-setting. You can’t sack someone for doing something which was perfectly legal when they did it.
And you are advocating for censorship of public activities of the police. The police were conducting this raid in the view of thousands of members of the public. It is absurd to argue that something which can be seen from the street by thousands of people is ‘private’. The BBC would inevitably have won its appeal, which is no doubt why it was banned from bringing one.
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“What if it was you, an innocent party on the receiving end?”
If it was me – or anyone – subjected to a raid of the same scale as the one carried out at Sir Cliff’s property, here’s what would happen:
-Everyone in the street would know within minutes
-It would be all over social media within an hour
In other words, the exact same thing that would have happened with Sir Cliff, had the BBC not broken the story before Twitter could, and the exact same thing which will happen to any other major celebrity facing a similar raid – in which eventuality we will be faced with the legal absurdity of members of the public publishing photos all over Twitter and Facebook while the press is forced to impotently twiddle its thumbs.
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Predictable media-centred reaction to my point of view. The justification seems to be it happened so it should be reported whatever the totally unjustified release of information ( as in Richard case) and the effect on a life.
re social media: that raises another debate about social media now leading the news agenda, not national press, radio or TV. Bit depressing isn’t it? We must agree to differ. I rest my case m’lord.
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No, my point is that it is dangerous to start censoring the publication of information on the activities of police, which occur in full view of thousands of members of the public.
Where does that end – ruling that things which happen in public are actually private? If someone gets run over outside your front door, you’re not allowed to know about it? If a police officer beats someone to death in a High Street, you’re not allowed to know about it?
When judges start claiming that the activities of public servants, in public places, in full view of the public, are ‘private’ and must be censored, you are in frightening and dangerous territory.
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TwissV : Agree with you. The fact is that the police and the ~BBC colluded, as far as one can tell, to highlight this cae. To that extent I am annoyed about that. But Sir Cliff,whether he likes it or not, is a “public” well known figure. To put it bluntly: if this had been Mr Nobody then not one of the public expressing outrage at his treatment by the Media would have cared a toss. But he is a “national treasure” and must therefore be “protected” from every day rights and wrongs. No, No NO.
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From what I have read, this had devastating consequences for him mentally. Can that be right if he is an innocent man?
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the idea that a celebrity should be unfairly exposed to unjustified and distressing publicity just because it is a good news story and they are famous is not only unfair it is ridiculous. They have the same rights as any member of the public. Sorry to spoil a good story.
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While agreeing with elements of both sides of the case in this fascinating legal minefield, I would ask just one question: I wonder how many people who spread news of the police raid across social media, thereby committing the same ‘offence’ got pinged in the same way as the BBC?
I thought so…
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TwissV. I am not talking about people getting run over or beaten up . It’s fair to report that.
It is not fair to report that someone is being investigated, as the Richard case proves. Not is it fair for a police officer to collude with the BBC or any news organisation for a scoop. Except in this case it wasn’t and made an expensive laughing stock of the BBC, for which no-one seems to have been held to account.
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