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.