This critique follows on from my previous post, in which I responded to Paul Wragg’s criticism of the manner in which the judge in Richard v BBC dealt with the first stage of the claim – whether Richard had a “reasonable expectation of privacy” in respect of the information broadcast about him.
In this post, I turn to Wragg’s criticism of the judge’s treatment of the second stage of the claim, the balance that the court must endeavour to strike between the claimant’s privacy and the public interest in publishing the information. As with his arguments in respect of the reasonable expectation of privacy element of the case, I think Wragg’s argument on this second element is problematic.
Wragg argues that Mann J misunderstood the objective nature of the test. For the true public interest in the BBC’s broadcast concerned the police: it was the public interest “in knowing how the police conduct investigations against the upper echelons of society”. It matters not, Wragg insists, that the BBC thought the public interest in the story centred on Sir Cliff Richard’s identity, rather than the police’s conduct of its investigation. All that matters is that the broadcast contributed to informing the public about this issue which is of public interest. As such, when Mann J says there was no public interest in the BBC’s broadcast, he is mistaken.
This error comes from Mann J having been looking for public interest in the wrong place; he thought – as the BBC thought – that the public interest derived exclusively from Sir Cliff Richard’s identity. In reality, Wragg says, it was a very different public interest to do with police conduct. Once one realises that, it becomes apparent that there is some public interest and thus the learned judge’s conclusion – that there was no public interest in the BBC’s broadcast – is unsound. Moreover, a proper balance between these two competing interests would see the public interest claim succeed and the privacy claim fail, for little – if any – harm was actually done to Sir Cliff Richard’s privacy interests by the BBC’s broadcasts. The only real harm here was caused by SYP’s indiscretion in revealing the impending raid to the BBC.
The public interest balance
Wragg is justified in criticising Mann J for the way in which he went about dealing with the balancing test that forms the second stage of the MPI methodology. Mann J found that there was no public interest in broadcasting the footage of the raid on Richard’s home for two reasons. First, because the BBC appeared not to believe in the public interest nature of the journalism itself; it was more concerned with beating its rivals to a big scoop. Second, because whilst the wide-ranging police investigation into historic sex offences known as Operation Yewtree is a matter of public interest, the names of individual suspects are not.
Those who are familiar with Wragg’s work will instantly recognise the error that Mann J has committed here. It is that he has treated the question of public interest as an all-or-nothing matter; either there is public interest or there is none. Wragg has done English privacy jurisprudence a great service by demonstrating elsewhere – in forensic detail – that English courts almost always fall into this trap. Where a court finds that there is any level of public interest in published information, the claim fails.
Conversely, in virtually every case where the claim succeeds, the court finds that there is no public interest at all. The chances of these findings accurately reflecting the true levels of public interest in play in these cases strike me as being likely to be extremely remote. What is far more plausible is that in many cases there is some degree of public interest that might justify the privacy violation. And, of course, the very purpose of the balancing exercise in MPI is to determine whether that degree of public interest is sufficient to justify, on a test of proportionality, the infringement of the claimant’s privacy.
Wragg argues that there is clearly a degree of public interest in the BBC’s broadcast in Richard. This public interest derives, he says, from the conduct of the police in investigating these sorts of offences, and in the execution of search warrants, being a matter of public importance:
There is always a public interest in knowing what the police does in the public’s name. There is always a public interest in knowing how the police interact with celebrity – and the upper echelons of society: Are they intimated? Do they apply the law equally?
Thus, Wragg argues, it is irrelevant that the BBC failed to appreciate the public interest nature of the journalism in which it was engaged; the point of an objective test is that it is open to the court to identify matters of public interest that the parties themselves may have overlooked. The problem with this is that it would not be a great extension of this argument to suggest that there is public interest in universal surveillance of the interactions between the police and anybody else. (Robin Barnes, in her book, Outrageous Invasions, gives some striking examples of US cases in which such a public interest has been asserted – including cases where the interactions of paramedics with dying patients have been broadcast – in the interests of dispelling the argument.) Giving the argument the benefit of the doubt, however, and assuming there is such a public interest, it strikes me as being fairly minimal in any given case, and of a sort that could quite straightforwardly be satisfied by far less intrusive means than the BBC deployed in this instance. (This is a matter of proportionality – something I return to shortly.)
There is indeed some public interest in the identity of criminal suspects. This is not something with which I am wholly comfortable, given that we live in a technologically interconnected age where being linked with a crime one has not committed can create a false impression that lasts indefinitely (particularly online), and it is a conclusion I reach with some reluctance. However, since decisions to charge suspects are made by the Crown Prosecution Service only when there is a realistic prospect of securing a conviction, and since the evidence of a single complainant may not be sufficient to clear this hurdle (especially in historic abuse cases where there is a lack of hard evidence), it can be in the public interest to identify suspects so that further complainants, should there be any, have the opportunity to come forward and provide evidence that would corroborate the original complaint and bolster the chances of a conviction sufficiently to enable a charge to be brought to bear.
This is probably the strongest argument against granting suspects pre-charge anonymity (a move that is shortly to be the subject of a Private Member’s Bill in Parliament). Moreover, the Supreme Court in Flood v Times Newspapers Ltd held that the identity of an individual can add colour to a media report of an investigation, in a way that increases the chances of bringing matters of public interest pertaining to that investigation to the attention of the public. In Flood, this led the Supreme Court to hold that identifying the claimant in that case in a newspaper report (even though he turned out to be wholly innocent) was not only in the public interest, but a proportionate infringement of his privacy. The reasoning in Flood is deeply troubling for anyone who takes individual privacy rights seriously (it was not a case where unknown complainants might have come forward with more evidence). But the simple fact of the matter is that it is a Supreme Court authority with clear relevance to Richard that ought either to have been applied by Mann J or explicitly distinguished. Unfortunately, it was not even mentioned.
The notion that the police conduct of raids connected with high-profile (or indeed, presumably, any other level of profile) investigations is an issue of public interest simply as a matter of course is problematic. But it is nonetheless possible, depending on the particular facts, for police conduct to be a matter of public interest in any given case. Where I take issue with Wragg’s analysis is with the notion that the public interest in the police conduct of raids (assuming that there is some), which was apparently served by broadcasting the execution of such a raid live on national television, justifies the broadcast as a proportionate infringement of Richard’s privacy.
Surely any public interest in identifying Sir Cliff Richard as the subject of the investigation could proportionately have been served with a simple factual statement; the sensational live coverage filmed from a helicopter was far more intrusive than was necessary to satisfy that aspect of public interest. And so we are left with the question of whether the nature of the coverage was proportionate to the wider public interest Wragg identifies: the conduct of the police.
Wragg makes two points that suggest he thinks that the coverage was proportionate, to which I ought briefly to respond. First, he queries what “damage” Sir Cliff Richard actually suffered. Once he discounts reputational harm as irrelevant (as discussed in my first post), he asks “[w]hat threat to dignity and autonomy arises from the recording, via helicopter, of his possessions being captured by the police?” In his view, the only harmful conduct in this case was that of SYP (informing the BBC of the impending raid); the BBC’s broadcast added nothing. Second, Wragg queries whether the harm Richard might have suffered at the BBC’s hands (if indeed there was some), rose to a comparable level to that which has attracted liability in other high-profile privacy cases:
I do not say there is no damage to these values, but is it at the same level as the damage done in the Mosley case, or the Tulisa [Contostavlos] case, or AMP v Persons Unknown, or the McClaren case … or the YXB v TNO case …
My response would be this. First, as a basic matter of causation, the BBC’s broadcast did add something: it added the that which elevated the extent of the distress the claimant suffered to the level it reached. SYP’s act of informing the BBC about the impending raid would have caused minimal harm but for the BBC’s decision to give the raid on-air prominence.
Moreover, Sir Cliff Richard’s dignity and autonomy were not merely threatened by the coverage; they were violated. His possessions were hauled out of his home live on national television. (Whilst the BBC’s motive is, as Wragg says, irrelevant to the question of public interest, there is still something striking about its own description of this as a “money shot” (at ).) There is nothing dignified about having the police go through your possessions, less still in having others watching while that happen, still less in those watchful eyes being those of 3.2 million strangers glued to their TV screens. His autonomy – his capacity to decide for himself who would see him and his possessions that day – was wholly subverted.
Second, each of the cases Wragg cites involve sexual matters – whether publication of the fact of an affair (as in McClaren) or of pictures/video footage of sexual acts (Mosley, Contostavlos, AMP, YXB). The cases involving the dissemination of intimate pictures/footage immediately give rise to an intuitive feeling that the victim’s dignity and autonomy have been violated. We do not stop to query this. Even if we did, we would quickly conclude that our intuition was correct; people are rarely at their most dignified during moments of sexual ecstasy and, in any event, disseminating such pictures/footage clearly rides roughshod over the individual’s claim to decide for themselves under what circumstances and to whom sexual acts in which they are engage are revealed. But we should not fall into the trap of thinking that, just because most privacy cases in English law are about sex, all such cases must be. Or that matters that are not sexual are not as private as those which are.
The distress caused to Sir Cliff Richard is also relevant as part of the violation of his dignity and autonomy. To knowingly or recklessly cause distress to a person – and there can have been no doubt that the BBC knew that its coverage would cause Richard distress – is to treat that person without regard for their dignity. Distress does not manifest itself in humans voluntarily; to cause a person distress violates their autonomy, for they cannot control their emotional reaction.
And what did we learn about the police raid that might justify these various violations of Richard’s privacy? We learned that the police go in in numbers. That they take everything of interest from a property. That they wear translucent plastic gloves when handling evidence. Most of this we knew already, of course, from watching police dramas on TV or in the movies. We learned far more about wrongdoing committed by SYP from the broadcasts of the Hillsborough disaster, but we do not repeat the footage of individuals being crushed in the crowd because to do so would be disproportionately distressing; we can learn what we need to know by ex post facto verbal or written reports. And so I find it hard to accept that there could be sufficient public interest in this to justify what the claimant in this case suffered.
There has already been, and will continue to be, much wringing of hands and public protestation about the dangerous precedent this case purportedly sets for public interest journalism. This is to be expected; it has happened every single time (which still adds up to fewer than ten) that a high-profile MPI claim has proceeded to trial and resulted in a claimant succeeding against a big media company. Campbell supposedly heralded the end of public interest journalism in 2004. Mosley did so again in 2009. PJS did in 2016. By their own accounts, the news media – both print and broadcast – ought by now to have been utterly eviscerated by these dangerous precedents, but there they stand, as strong as ever. The boys in the British media continue to cry wolf, but there is no sign whatsoever of anyone being eaten.
No doubt, there may be times when exposing wrong-doing by the police necessitates violating individual privacy. When such a time arises, I have no doubt that the committed and responsible people who make up the vast majority of journalists in this country will fearlessly report the truth. When that happens, the courts would do well to heed Wragg’s warnings about the dangers of treating public interest matters as all-or-nothing issues, and instead start engaging actively in a detailed, subtle and – above all else – genuine balancing exercise. But this was not such a case. The police told the Beeb they were going to raid Cliff Richard’s home and good ol’ Auntie thought this would make for a fabulous scoop – especially from a helicopter from which the “money shots” could most dramatically be filmed. As such, whilst Mann J’s judgment is far from perfect in the way that it understands and applies MPI doctrine, his disposal of the case – ruling that Sir Cliff Richard’s privacy was unlawfully violated – is, in my view, entirely correct.
Dr Thomas DC Bennett, Newcastle Law School.