Cliff Richard judgment a new shift in legal balance between free speech and privacy – Robin Callender-Smith

20 07 2018

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The question at the heart of Mr Justice Mann’s High Court judgment in the Sir Cliff Richard v BBC case had been a longstanding legal conundrum: how far do a celebrity’s privacy rights – or indeed anyone’s – extend in respect of the pre-charge stage of a police investigation?

Until this judgment, this was an unresolved area – made all the more difficult by a range of conflicting opinions. I have to disclose some experience in this area. Two or three years ago, when I was the duty lawyer on The Sun newspaper, I advised that Rolf Harris, who had not been arrested but was voluntarily facing further police questions about serious sexual offences, could be identified.

The editor stood by the story, Harris was identified in the copy, other victims came forward and there was a conviction after a full trial. Harris is still alive and serving a significant prison sentence.

My advice would be different now. There are clear factual differences between my case and Mr Justice Mann’s judgment in respect of Sir Cliff. Foremost is that the allegations of an historic sex offence against Sir Cliff that led to this highly publicised search of his property in Sunningdale, Berkshire, in August 2014 resulted in South Yorkshire Police (SYP) announcing, in June 2016, that there would be no charges. The police investigation into the case on which I advised led to Harris’ rapid arrest, charges and conviction.

Following Mr Justice Mann’s judgment, to stay on the right side of this privacy gulf, the media must now wait until someone is arrested. Doubtless the arguments will continue that even that goes too far and that identification in such cases should only take place after they are charged or a full trial and conviction. Issues of preserving the principles of open justice should prevail against that kind of extension – but each new restriction carries with it the cumulative potential to erode free speech and Article 10 of the Human Rights Act.

Mr Justice Mann’s detailed 122-page judgment – written after 12 days of hearing evidence – fundamentally alters the judicial balance between the media’s Article 10 right to inform readers and the public about a factual situation and the individual’s Article 8 right to privacy.

My understanding of his reasoning is as follows:

  • That Sir Cliff DID have a legitimate expectation of privacy in relation to the fact of the investigation and the fact of the search of his apartment.
  • Given that Sir Cliff prima facie had such a right, the BBC was NOT justified in these circumstances in publishing by virtue of its rights of freedom of expression under Article 10. So there had, therefore, been an infringement.

Mr Justice Mann awarded Sir Cliff general damages for the infringement totalling £190,000, split between the police and the BBC. The BBC is to pay the lion’s share (65% on the basis that it was a significantly greater contributor to the damage that was caused). He also ordered the BBC to pay aggravated damages of £20,000 because it had nominated the story as “Scoop of the Year” for an award (it did not get) from the Royal Television Society.

Sensation and stigma

The judge noted that the position might have been different if the general public was capable of adopting a completely open and broadminded view of an investigation, so that in cases where no charge resulted there would be no damage to a person’s reputation. Mann J added, however:

But neither of those things is true. The fact of an investigation … will of itself carry some stigma, no matter how often one says it should not.

He also observed that, if information starts out as private, it retains that quality unless it is disclosed for police operational reasons, described elsewhere in the judgment as “shaking the tree”.

The judge said that his decision had not been influenced by the “sensational” manner in which the BBC covered the search, using footage obtained from a helicopter in its report. A “lower key report of the search and investigation (for example, done merely by a measured reading of the relevant facts by a presenter in the studio) would … be a serious infringement,” he said. “What the BBC did was more than that.”

The BBC had added drama and a degree of sensationalism by the nature of its coverage. The impact of the invasion was, in my view, very materially increased. Pictures had been used to add impact, rather than just as verification of the story. “That is what the BBC did, quite handsomely,” Mr Justice Mann observed.

That last point, the judgment about the manner in which the infringing material was presented, is perhaps the most potentially “chilling” element in this decision as it hints at the possibility of even higher damages depending on the media organisations involved and the manner in which the story is presented.

The BBC has indicated it might appeal, issuing a statement saying that the judgment “creates new case law and represents a dramatic shift against press freedom and the long-standing ability of journalists to report on police investigation”.

Bad motive

Mr Justice Mann is a Judge who already has significant judicial experience in this area. Three years ago, he decided the landmark breach of privacy/damages case of Gulati and others v Mirror Group Newspapers after another 12-day hearing where he delivered a comprehensive 205-page judgment awarding a total of £1,237,000 in damages to eight representative celebrities whose privacy had been invaded by MGN’s admitted hacking of their personal data.

That decision – particularly his methodology, formulation and reasoning – was subsequently upheld by the Court of Appeal with permission to appeal to the Supreme Court refused.

The ConversationThe judge’s meticulous judicial reasoning in Sir Cliff’s case may not stand scrutiny on appeal. He appears to have characterised as “bad motive” the BBC’s urge to get a valid scoop out to its viewers. Arguably, this should not have been given the adverse weight it has in his conclusions.

Robin Callender Smith, Professor of Media Law, Queen Mary University of London

This article was originally published on The Conversation. Read the original article.


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6 responses

21 07 2018
Time for Celebration? The employment law implications of the Cliff Richard Judgement | Employment Writes

[…] on police investigation.” Other commentators are equally critical such as  David Hencke and Robin Callender-Smith. The issues are real but for my part I think this is a good judgement that prevents tarnished […]

23 07 2018
Law and Media Round Up – 23 July 2018 | Inforrm's Blog

[…] Robin Callender-Smith on Inforrm, “Cliff Richard judgment a new shift in legal balance between free speech and privacy” […]

23 07 2018
Evan Harris

The author says, “Two or three years ago, when I was the duty lawyer on The Sun newspaper, I advised that Rolf Harris, who had not been arrested but was voluntarily facing further police questions about serious sexual offences, could be identified”

Harris had been interviewed under caution in November. 2012, and arrested in March 2013, prior to being named by The Sun in April 2013.

So he had been arrested and it was 5 years ago rather than “two or three” years ago.

The author says “Harris is still alive and serving a significant prison sentence.” Harris was released from prison in 2017.

The author says “Following Mr Justice Mann’s judgment, to stay on the right side of this privacy gulf, the media must now wait until someone is arrested.”

Mr Justice Mann did not have to consider the question of naming “post-arrest” but as can be seen from para 255 of the judgement, in so far as the judgement would suggest any dividing line dealing with the principle (each case will be fact-sensitive) of whether the right to privacy outweighing the right of freedom of expression of the media or vice versa, it would be the point of charge not the point of arrest.

23 07 2018
Christopher Whitmey

John Simpson tweets, “How many crooks and scumbags will try to take advantage of this from now on?”. If John Simpson believes Sir Cliff is neither then how can they?

29 07 2018
Upholding celebrities’ privacy and problematising news media claims to freedom of expression: Sir Cliff Richard v BBC – Jelena Gligorijević | Inforrm's Blog

[…] have a prima facie reasonable expectation of privacy (see Professor Callender-Smith’s Inforrm post). It was “understandable and justifiable (and reasonable)” that suspects do “not wish others […]

6 08 2018
Inforrm is taking a Summer Break | Inforrm's Blog

[…] discussed case of the year and has been the subject of a wide range of Inforrm posts including by Robin Callender-Smith, Jonathan Coad, Paul Wragg, Brian Cathcart, Jelena Gligorijević and Thomas Bennett (Parts 1 and […]

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