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Law Column: Privacy in action – law, regulation, and “Cliff’s law”

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I have been thinking about privacy – again – over the last fortnight, so with apologies for two consecutive Law Columns dwelling on this issue, here is further food for thought.

Readers will recall that in the previous Law Column, one of my colleagues commented on the drone chaos at Gatwick in December and the legal position of the couple who were not, after all, responsible for “ruining Christmas”

The point my colleague made was that in light of the decision in Sir Cliff Richard’s case against the BBC, it appeared that the Gatwick couple could well have a valid claim against those who published their details.

The implications for open justice are obvious, and knowing how important this principle is for journalists, I was expecting posts from HTFP readers to be fairly critical of any legal development which inhibits the ability to report police investigations or arrests.

So I was quite surprised when a regular contributor wrote:

“There is no excuse for naming people before they have been charged. It is against natural justice”.

I have heard this argument before, usually from politicians, but it would be interesting to know if this is an opinion which is now more common amongst journalists.

Then, last week, I was asked to participate in a BBC local radio discussion on the same subject. It’s always difficult to convey tricky legal concepts in a two minute Q and A, but I did my best.  (Will I be invited to another discussion?  Only time will tell!).

Anyway, the slightly unexpected question that was put to me was this: do I now advise news publishers differently, following Sir Cliff’s case? In the brief time available, I could only fall back on the lawyer’s favourite: “it depends”.

But on reflection, I think the answer is probably ‘yes’.

For example, last week a premiership footballer was arrested on suspicion of assaulting his girlfriend. The allegation was vigorously denied and the player was released soon afterwards. As was to be expected, the police statement simply said: “A 26-year-old man was arrested on suspicion of ABH. He has been released with no further action“.

The question I was asked was whether the man could be named. In the good old days, I would not have hesitated to say “yes, no problem”.

But because of Sir Cliff, I felt obliged to be more cautious, and draw the editor’s attention to the risk that theoretically, the man might try to sue for breach of his privacy rights. This meant, I said, that the editor had to assess the risk and make an editorial decision with that possibility in mind.

Interestingly, the editor decided to name the player, presumably on public interest grounds.

Personally, I think he made the correct decision, but as the mere lawyer rather than the editor, that wasn’t my call. But I think it’s a good example of how legal advice has had to adapt to changing circumstances.

And finally, the third reason for thinking about privacy last week was when I learned that in the same radio interview (either before or after my contribution), the Director of Hacked Off had taken the opportunity to lay into IPSO.

In commenting on the Gatwick couple, he said:

“If there was proper remedy and a truly independent regulator that you could raise an issue with if you had a problem with the press, then that would help to deter the press from publishing misleading information that gets away from actually the public interest”.

But is this criticism justified? After all, IPSO’s Code of Practice, with which most mainstream publishers and journalists comply, is clear on the issue:

Everyone is entitled to respect for his or her private and family life, home, health and correspondence, including digital communications.

Editors will be expected to justify intrusions into any individual’s private life without consent.

It’s not for me to defend IPSO and its status as an independent press regulator, but given the commitment that most journalists and their employers give to privacy rights, it seems clear that there’s more to this than meets the eye. As readers will know, the Code’s requirement that journalists protect privacy rights is identical to the obligations imposed by the law.

But the one thing on which everyone can probably agree is that privacy law is in a state of flux, with more developments sure to occur in 2019. Happy New Year!

4 comments

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  • January 22, 2019 at 2:08 pm
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    This is not entirely a privacy issue. It is, as previously stated on HTFP, an issue of natural justice in a time where anyone given even the slightest mention of possibly being involved in criminal activity is assumed by the public to be guilty under the “no smoke without fire” theory.
    Where is the public interest in naming a man who is never charged? Apart from a few extra paper sales or online clicks. What sort of natural justice in there in that? Obviously naming someone, especially if they have an element of fame, makes it a stronger story, but that is never a moral justification. This can hurt the ordinary person as much as the so-called celebrity. That is why police don’t release names. If papers want to take a chance on their own information, so be it.
    Supposing a hack was arrested for allegedly sexually assaulting a woman he had been sent to interview.
    Police are still investigating. The complaint might be genuine, might be malicious. Would the hack want his name printed and his name tarnished forever, despite police later saying no further action would taken? His partner, his family, his friends and thousands of people who will make an instant judgement on him will have seen him associated with a deeply unpleasant act, whatever clarifications might be made. The damage is done.
    Perhaps it is time journalists started looking beyond the newsroom and the scoop and consider if they are being fair to someone who could be totally innocent. It is stronger than the benefit of the doubt. It is natural justice and editors should not hide behind a feeble “public interest” defence. The public might be interested , but that is not the point. I call as my witness Sir Cliff Richard.

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  • January 22, 2019 at 5:09 pm
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    “Perhaps it is time journalists started looking beyond the newsroom and the scoop and consider if they are being fair to someone who could be totally innocent.”
    If one follows this thought to its implied conclusion, we should not report court proceedings until someone has ben convicted. They are, after all, innocent until proven guilty. By the same illogic, why should being charged with an offence be the threshold for identifying someone? They are still innocent at that point. What next – the absurd Swedish journalism model? https://www.thelocal.se/20090223/17716
    As for scoops, that’s the name of the game – there is no finer moment than knowing that a rival is probably reading one’s exclusive and cursing aloud!

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  • January 22, 2019 at 5:29 pm
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    “Where is the public interest in naming a man who is never charged?”

    I would ask in response: Where is the public interest in censoring the publication of information which is widely publicly known?

    The police activity at Cliff’s home was extremely public. A large number of police descended on the property – which was a block of apartments, meaning everybody else who lived in the block was immediately alerted to what was going on. Moreover, the activity was visible from the busy road which passed the property. So thousands more motorists and pedestrians witnessed it firsthand.

    Are we really saying that if public servants are carrying out extremely public activity in a public place, in full view of thousands of members of the public, it should be an offence to report on it? That is an extremely dangerous precedent to set. That’s the beginning of a police state.

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  • January 22, 2019 at 11:13 pm
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    Kevin Duffy and TwisV.

    So you would be OK about having your name splashed everywhere just because the police had interviewed you?
    For the record, I don’t hold with not publishing names of people actually charged. If you go to a court you can see names listed and members of the public can attend court. The process of justice does not begin when someone is merely questioned, but when they are charged.
    I am not saying it should be illegal to report on an incident. But it should be illegal for any person questioned in relation to it to be named publicly until they are charged. Mud sticks and you know it.
    If there is a bit of local gossip or even a lot, so be it. There always will be. But papers should not be allowed to spread the name of potentially innocent people far and wide.
    You seem to think if the story is good enough it doesn’t matter who papers cause grief to, even if they are totally innocent. How fair is that?
    That sounds like another sort of state to me.
    I am entirely happy with my attitude. You are obviously content with yours. We must agree to differ. Thanks for your responses.

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