Why Sir Cliff Richard’s case was rightly decided: Part 1: Reasonable expectation of privacy – Thomas Bennett

In a recent post on Inforrm, my good friend Dr Paul Wragg sets out a detailed argument critiquing the High Court’s recent decision in Cliff Richard’s successful privacy claim against the BBC (Richard v BBC). Wragg takes the view that the reasoning of Mann J in the case is deficient in a number of respects, and that his disposal of the case is unsatisfactory.

In short, Wragg argues that Sir Cliff Richard won a case that he probably should have lost, and the High Court has swung a wrecking ball through public interest journalism in the process. In what follows, I respond to these arguments and make the case that, notwithstanding some deficiencies in the judgment, the disposal of the case was essentially sound. I will not dwell on the facts of the case in this post, but readers may familiarise themselves with it here if needed.

Wragg takes issue with Mann J’s treatment of both elements of the claim in “misuse of private information” (MPI). The first element is the question of whether the claimant (C) has a reasonable expectation of privacy in respect of the information the publication of which forms the basis of the complaint. The second element is the question of whether, assuming C has a reasonable expectation of privacy, that privacy interest is outweighed in an objective balancing test by the public interest in publishing the information.

I will deal with both elements of the claim in two separate posts, the first of which deals with the “reasonable expectation” question. In respect of that question, Wragg argues that Mann J incorrectly treated Richard’s reasonable expectation claim against the BBC as if it were the same as that which Richard had against South Yorkshire Police (SYP). (The BBC sourced information about the impending police raid on Richard’s home from SYP, so both bodies were involved. SYP admitted its liability and settled the claim against it.)

Wragg says this is a misunderstanding of the legal test in question; whilst Richard may have had reasonable expectations of privacy against both the BBC and SYP, they were not the same reasonable expectations (because the BBC and SYP serve different functions). He goes on to argue that Richard ought to have found it more difficult to establish a reasonable expectation vis-à-vis the BBC than Mann J seems to have appreciated, though he stops short of arguing that there was no valid basis upon which Mann J could have found such a reasonable expectation.

For the reasons I set out below, I think Wragg’s argument is problematic. I thus offer the outlines of a critique in the interests of fostering discussion.

Reasonable expectation of privacy

The BBC and SYP are different types of organisation, serving different public functions. SYP is, undoubtedly, a public body and thus bound by the s.6 Human Rights Act 1998 obligation to act compatibly with ECHR rights. The BBC’s status in this respect is less clear. It has been found to be a “hybrid” body – taking on the responsibilities of a public body – for the purposes of Freedom of Information law (Sugar v BBC)), but it may still lie outside the reach of s.6.

In Wragg’s view, this distinction takes on considerable significance. SYP can readily be said to have breached Richard’s Art.8 ECHR right to private life when they revealed the fact that he was under investigation to journalists at the BBC, which amounts to an unlawful act in breach of s.6. SYP’s liability in this respect was not challenged in court, and is not in any doubt. The BBC, however, are not necessarily bound by s.6 and thus cannot be said automatically to have breached a statutory obligation either by soliciting the information or by broadcasting it and the police raid on Richard’s home. Any liability faced by the BBC arises at common law, not under the HRA.

Wragg is absolutely right in these observations. But nothing in them necessitates the conclusion that Mann J was wrong to treat the BBC and SYP equivalently when determining the reasonable expectation question. For whilst SYP is bound by s.6, it is also capable of attracting liability at common law under the “tort” of MPI. (I call MPI a “tort” here for convenience, not as an endorsement of that deeply problematic label which I have critiqued in detail elsewhere.) The fact that SYP is a public body does not alter the test by which its potential liability in tort is decided; the test for SYP and the BBC, in MPI, is one and the same.

The next objection Wragg raises to Mann J’s treatment of this question is that the differing functions served by the BBC and SYP mean that the court ought to have phrased its reasonable expectation question differently in respect of each organisation:

As against the SYP, it is: was it reasonable for the claimant to expect that news of the impending search would not be distributed to the press, including the BBC?  As against the BBC, it is: was it reasonable for the claimant to expect that the BBC would not broadcast the search of his property by the police as part of their investigation into him about allegations of non-recent criminal behaviour?

Wragg makes no mention of the BBC’s deliberate sourcing of the information from SYP in his reworked reasonable expectation question. However, it must surely be acknowledged that the reasonable expectation against the BBC goes not just to publication of the material, but to its acquisition. (In Tchenguiz v Imerman, we find Court of Appeal authority that could be mobilised to support this, with a modest amount of analogical argument.)

The reworked question thus ought to be, or at the very least to include the following: was it reasonable for the claimant to expect that the BBC would not seek out information pertaining to an impending police raid and then film and broadcast the execution of that raid in a highly intrusive manner?

If one separates out the individual parts of the BBC’s conduct in this case and subjects each to the question “does this give rise to a reasonable expectation of privacy?”, the answer is likely to be “no” on most, if not all, counts. But this is not an appropriate way to look at what happened. Indeed, to do so cuts across the Court of Appeal’s guidance in Murray v Express Newspapers, which explicitly instructs the court to consider all of the circumstances in which the alleged privacy violation occurred.

It is the totality of the BBC’s conduct in this matter – from its first steps into seeking out the information from SYP, to preparing for a large-scale live broadcast operation, to the sensationalist and intrusive nature of the broadcast, informing the public of the nature of the investigation (ie. into an historic sex abuse allegation), and the inclusion of the fact that the person under suspicion was Sir Cliff Richard – that gives rise to the reasonable expectation. These matters must be viewed holistically. It was reasonable for the claimant to expect that the BBC would not do all these things, together, and thereby victimise him.

Wragg objects to analysing the reasonable expectation in a more holistic fashion (though he does not appear to envisage as broad a contextual analysis as the one I have set out) in part because it conflates “privacy harms (such as emotional distress) with reputational concerns”. The consequences of falsely accusing a person of a serious crime (or of suggesting they are under investigation, as happened here) are not relevant to the reasonable expectation question, Wragg says. They may become relevant to a different action, further down the line – such as a claim in defamation. But the reputational concern is distinct from the privacy harm and should play no part in establishing a claim in MPI.

Mann J takes a rather different view of the relationship between privacy and reputational interests, and has done for some time. In Hannon v News Group Newspapers Ltd, he refused to strike out a claim in MPI that, the defendant argued, was primarily to do with protecting the claimant’s reputation. Hannon is of relevance here because much the same legal point was made by NGN’s counsel in that case as is made by Wragg – that the only route of legal redress for reputational harm should be a defamation claim, and that a privacy claim should not encompass reputational concerns. In Hannon, responding to that argument, Mann J said:

I am not satisfied that as a matter of principle it is necessary or appropriate, or even in some cases practically possible, to draw a hard line between the element of privacy or confidence claims which go into what might be called the realms of reputation, and other elements.

It is far from clear that harm to privacy and reputation need to be separated conceptually in the way Wragg suggests. Eric Descheemaeker has argued (writing in the Journal of Media Law in 2015) that one way in which tortious harms can be legitimately, coherently conceptualised is to conflate the wrongful act with the harmful consequences. He calls this a “uni-polar” model of harm. According to this model, the “harm” suffered by the victim is the very diminution in their right (to privacy) inherent in the defendant’s wrongful act. This sets the uni-polar model apart from its counterpart, the bi-polar model, whereby harm is separate from and consequent upon a wrongful act. The uni-polar model is actually the model of harm that appears to prevail in English privacy cases (the phone hacking case of Gulati v MGN being a prime example), suggesting it would be appropriate (on coherence grounds) to deal with Richard along its lines.

Furthermore, we know as a matter of law that the Art.8 ECHR right to private life contains a right to reputation (Pfeifer v Austria). Viewed through the eyes of the Strasbourg Court, reputation is a privacy interest. And if, as Wragg later argues, privacy is conceptualised as an interest in one’s dignity and autonomy, it becomes entirely defensible – as a conceptual matter – to locate reputational interests within a broader privacy right. One’s reputation, after all, contributes to one’s dignity; to traduce one’s reputation (undeservedly) is to act with contempt for one’s dignity. A good reputation, moreover, contributes to our ability to lead autonomous lives; a bad reputation is likely to see avenues for self-advancement and self-development that we might choose to take (perhaps in our choice of employment) curtailed.  Thus we might say, invoking the uni-polar model and this conceptual perspective on privacy, that a diminution in one’s reputation is a diminution in one’s right to private life.

Three things may therefore be said in defence of Mann J’s treatment of this issue. First, it maintains consistency with his earlier judgment on the point (providing a degree of certainty and predictability). Second, it coheres with the prevailing model of harm in English privacy law (the uni-polar model). Third, it fits within the European Court of Human Rights’ declaration that reputation is an aspect of the Art.8 right to private life. These points, moreover, are mutually supportive.

However, Wragg has a further objection to Mann J’s judgment on this element of the claim. This objection comes from its apparent potential to set a precedent to the effect that a person suspected of a criminal offence has a reasonable expectation of privacy, effective against any and all defendants (including media outlets) in respect of the fact he or she is under such suspicion. This also appears to be the major objection to the case currently doing the rounds in news reports and newspaper opinion columns, and is likely to provide the motivation for an appeal. The ruling is, Wragg says, “very troubling for the chilling effect that [it] has on press freedom.”

Wragg’s concern here seems to me to be premature. The finding of a reasonable expectation of privacy is not a conclusive finding of liability; it is just the first stage in a two-stage process. Once established, the court moves on to balance that reasonable expectation against the public interest. To pray in aid the public interest in avoiding chilling effects on the press as a reason to find against a reasonable expectation of privacy jumps the proverbial gun. It is the same in defamation. For example: the Defamation Act 2013 creates the defence of publication on a matter of public interest (s.4). S.4 does not prevent the court from finding that a piece of public interest journalism is prima facie libellous, but does give the defendant a strong defence once a prima facie case has been established. A finding in a defamation case that accusing a person of murder is prima facie libellous does not set a precedent that accusing a person of murder will always result in liability. It simply enables the claim to move beyond the prima facie stage and on to the defence stage.

“We do not want the press to decide that they [had] best not reveal the names of those investigated for fear of being sued,” says Wragg. But why not? We all face liability for breaches of various legal obligations every day of our lives. If I take insufficient care driving my car down the road and my carelessness occasions injury, I will be found liable for my negligence – unless, of course, I can establish a defence. If I tweet an allegation of criminal conduct about a person out into cyberspace, I may face liability in defamation – but only if I cannot raise a successful defence. Now, I, with my limited means and minimal public profile, am in a position to do far less damage to another’s reputation than the BBC, and I am also in a far weaker position to defend a claim against me for whatever damage I do cause. With the means to cause damage ought to come a responsibility to use those means carefully and with due regard to the harm we may cause our victims; with great power comes great responsibility.

Wragg’s argument seems to me to cut the other way. His argument insists that large media outlets should be granted the benefit of claims against them falling at the first hurdle, on the sorts of public interest grounds that ought to be considered at the second stage. He is right that this is a policy matter. But the real question is not whether this would benefit the media (which it would), nor whether such a benefit to the media secures some public interest (which it may well do). The question is whether granting such a legal procedural benefit to defendants in privacy cases is a proportionate response to the fear of a chilling effect, given that it will seriously curtail opportunities for claimants to succeed in protecting their own privacy interests.

This is not a new policy debate in tort law. The law has sought – and struggled – for many years to strike a balance between individual security and freedom of action. Generally speaking, English tort law favours individual security over freedom of action. It prefers to keep open the possibility of recognising novel duties of care in negligence over the certainty that refusing to do so would give to the insurance industry. It prioritises our right to quiet enjoyment of our homes over the public benefit that nuisance-creating activities might provide. It has traditionally prioritised reputational interests over freedom of expression, although that balance shifted somewhat with the passing of the 2013 Act.

The two sides of this debate can be characterised in many ways. Some prefer to talk of the competing claims on the loyalty of the law made by the ideals of corrective and distributive justice. (Lord Browne-Wilkinson said, in X (Minors) v Bedfordshire County Council, that corrective justice has the “first claim” on the loyalty of judges.) So it might be said – in favour of keeping the public interest matters away from consideration at the reasonable expectation stage of an MPI claim – that to do so coheres with tort law’s long-standing preference for prioritising individual security (and thereby pursuing corrective justice). Or it might be countered that acceding to the Wragg-type position, and fixating on the potential “chilling effects” in order to support a finding that there is no reasonable expectation in a case like Richard, coheres with a contemporary trend in tort law away from individual security and towards freedom of action. The policy question underpinning this aspect of Richard is large and has significant implications. And it raises rule of law questions, such as whether such policy matters ought even to be addressed by the courts or whether they should be left to legislators.

Of course, Wragg might retort that I am being hopelessly naïve in thinking that media outlets will routinely run the risk of publishing material that gives rise to a prima facie claim, even if it is expected that they would successfully defend the claim at stage two of the court’s analysis. Business does not thrive on such uncertainty, our media is commercial in nature and if it is not to collapse under the weight of its own insecurities, it needs assurances that public interest journalism will be fulsomely protected – even when it goes wrong.

I may well be naïve in my outlook. But if our press is as risk-averse as this argument would suggest – and given its propensity for publishing and broadcasting stories that cause enormous harm to individuals, both deserving and undeserving, I have my doubts – then it is not really a free press at all, in any meaningful sense. As ever, what the press and big media outlets really want is special treatment. It may well be a good idea to give it to them. But, as Wragg rightly recognises, the decision to do so (or not) is one of policy; policy, moreover, that is intimately enmeshed with the legal doctrine in this field, the contours of which have been set out by appellate courts whose precedents bind the High Court.

The quick (and probably unsatisfactory) answer to this conundrum is the predictable one that common lawyers will see coming a mile off: that the elements of MPI, which were laid down by the House of Lords, can only be significantly altered legitimately – and certainly such a policy shift would be significant – by our highest court (or Parliament), and not by a court of first instance. Mann J’s ruling on the reasonable expectation question contains some confusing parts, which Wragg is right to criticise. But it essentially does that which is generally thought to be “right” in precedential terms: following the Court of Appeal’s Murray guidance (in spirit, if not always in express language), keeping the reasonable expectation question separate from public interest arguments and thereby adhering to the higher court precedents that have sketched out (admittedly incompletely) the contours of the law in this field.

Part 2 of this post will deal with the public interest balancing test and will be published later this week.

Dr Thomas DC Bennett, Newcastle Law School.