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Law Column: A Summer of Privacy


The summer is always a fallow time when it comes to legal developments.  The Courts are running at reduced capacity, the judges and lawyers are away, and traditionally, it’s the silly season for news – though in the era of Covid, that’s definitely no longer the case.

But the legal summer of 2021 saw the effect of recent privacy developments in the context of reporting the arrests of various people, all suspected of having committed different kinds of criminal offences.  And what they illustrate are the difficulties with which journalists have to grapple when reporting high profile arrests.

But first, a recap.  Readers will recall the raid on Sir Cliff Richard’s home a few years ago.  It turned out that Sir Cliff was entirely innocent, and the publicity that was given to the execution of a search warrant (when he was abroad and had not been arrested, let alone charged) turned out to be a gross intrusion into his privacy.

Just over three years ago, Mr. Justice Mann delivered his well known judgment, and awarded Sir Cliff substantial damages against the BBC.

From a working journalist’s perspective, the key point to emerge from the judgment was that those who have been arrested (or who are being investigated but not arrested) have an absolute right to privacy until, at the very least, s/he is charged.  This approach has been followed in several cases in the subsequent years.

Which brings us to the Summer of 2021.

It all began in July with the arrest of a well know Premier League footballer over child sex allegations.  When the story broke, it proved almost impossible to report the event without identifying him.  Only the sketchiest of details could be included in stories about the arrest, to ensure his privacy rights were respected.

As events unfolded, the man’s club released additional limited information, which helped in the reporting of the story.  Technically, this new information probably enabled the suspect to be identified, but as it had almost certainly been released with his consent, it was clear that this information would not cause any legal problems.

I know the man’s identity, as does anyone with access to the internet.  But I am not going to identify him because his privacy rights are still engaged.  The fact that others outside the UK may have identified him makes no difference.

Then in August, we learned that Katie Price had been hospitalised after allegedly being assaulted.  A 32-year-old man was arrested on suspicion of  assault, theft, and coercive and controlling behaviour.  He was subsequently released on bail until September 20th.

For celebrity titles and reporters, this was a noteworthy event, which was covered extensively.  Indeed, it’s still an ongoing story, for a variety of reasons.

And yet, not one UK title has identified the man.  As far as I am aware, there has been 100pc compliance with the law.  Although people may have their suspicions as to the identity of the suspect, it appears those suspicions have not been fueled by newspaper, magazine, or online articles.

Interestingly and, some might say, unusually, a Google search does not reveal the man’s identity.  Whether this is out of respect for UK privacy laws, or due to the fact that Katie is not quite an international celebrity, is for others to decide.

At the other end of the scale, September saw a similar problem emerge from Belfast in a Troubles-related story.

On February 5th 1992, the UDA (a proscribed terrorist organisation) mounted an attack on a bookmakers shop, which resulted in five people being murdered.  One of the survivors of the atrocity is Mark Sykes, who was shot seven times.  In February this year, at an event to mark the 29th anniversary of the attack, Mr. Sykes was arrested for disorderly behaviour and detained for several hours before being released without charge.

September’s development was the news that the probationary police officers who had arrested him remain under investigation, and could face prosecution.

You can see where this is leading.  On the face of it, Mr. Sykes should not be identified as having been arrested.  But it turned out that in the seven months following his arrest, he gave many interviews to the press, and was perfectly happy to be identified as an arrested, but not charged, person.  He had no reasonable expectation of privacy because he had plainly consented to being identified.

So, what does the Summer of Privacy teach us?

First, this aspect of privacy law has become firmly entrenched, and the old days of journalists relying on long established sources to discover, and reveal, the identity of an arrested person, have gone forever.

Second, as is so often the case with the law, everything depends on the facts.  To quote, out of context, Mr. Justice Eady’s well known exhortation, journalists must carry out “an intense scrutiny of the facts”.  In this way, reporters can establish what has happened, whether the subject has a reasonable expectation of privacy, and whether the person in question has consented to being identified.

So is it justified to think of the last few months as the Summer of Privacy?  Definitely!