Certain cases capture the public’s attention and generate an extraordinary volume of reportage, scrutiny, comment and speculation. The disappearance of Madeline McCann while on holiday with her family in Portugal is the one of the most striking examples, but more recently the tragic murder of the teenager, Brianna Grey, in a Warrington park, led to the public being asked by Cheshire Constabulary to “avoid speculation online and be wary of sharing misinformation”.
On 27 January 2023, Nicola Bulley’s disappearance quickly became the subject of very widespread and intense media coverage. How intense? Well, Private Eye (No 1593) reports that by 21 February 2023, the Daily Mirror had run 232 pieces about the matter while The Sun had published 175 articles, and MailOnline 328 (that works out at more than 13 a day).
Inevitably, this led to viral coverage on social media. The unusual and mysterious circumstances of Ms Bulley’s disappearance whilst walking her dog by the river in the Lancashire village of St Michael’s on Wyre, coupled with the apparent lack of progress in finding her, led to widespread speculation and some members of the public becoming personally invested in investigating the disappearance, with a number of self-styled ‘social media detectives’ even taking it upon themselves to visit the location. Their activities, which encompassed trespass on nearby properties and confrontational questioning of residents, caused considerable disquiet in the local community. In due course this potent mixture was further enhanced when it was revealed that the Police had classed Ms Bulley as a vulnerable and “high-risk” missing person.
The case was certainly of great interest to the public. However, it also raised important questions relating to the balance to be struck between public interest (as opposed to the public’s interest) and privacy, and to what extent personal data should be protected during an ongoing police investigation.
The challenges which the public’s behaviour posed to the ongoing police investigation and Ms Bulley’s family are evidenced by Lancashire Constabulary’s statements released on 6 February 2023 (“…the speculation and comments on social media are both unhelpful to the investigation and, more importantly, hurtful for the family”), 9 February 2023 (confirming that a dispersal order had been issued in St Michael’s on Wyre and that there were “a number of grossly offensive comments being made on social media and elsewhere”) and on 10 February 2023 (“we continue to see a huge amount of commentary from so-called experts, ill-informed speculation and conspiracy theories which is damaging to the investigation, the community of St Michael’s and, worst of all, to Nicola’s family”).
On 15 February 2023 Lancashire Constabulary released another statement, this time seeking to “expand on” the “vulnerabilities” which Ms Bulley had at the time of her disappearance in order to put an end to public speculation – namely that she had “suffered with some significant issues with alcohol which were brought on by her ongoing struggles with menopause” and that as a result of this, “a response car staffed by both police and health professionals attended a report of concern for welfare” at her home address in the first half of January 2023.
Misuse of private information
Whilst Ms Bulley’s family confirmed that they were aware of the intention to release this information before the statement was published, the matter has since even attracted international headlines criticising the British Police’s decision to make information regarding Ms Bulley’s “issues with alcohol” and “struggles with menopause” public.
Many critics have described the Lancashire Constabulary decision to disclose Ms Bulley’s private information as ‘sexist’, with figures such as Zoë Billingham (chairwoman of an NHS mental health trust and the former HM Inspector of Constabulary) describing the disclosure as a “gross invasion of privacy” and questioning the relevance of a woman’s “reproductive status” in such circumstances. Billingham has also voiced the concern that Lancashire Constabulary’s decision may have a wider impact on women in the UK, as individuals may now be reluctant to report their mother or their sister as missing in the fear that personal information is then released to the public “for no apparent reason”.
Further criticism has been seen from the likes of Suella Braverman (Home Secretary), Yvette Cooper (Shadow Home Secretary), Penny Mordaunt (Leader of the Commons) and Dame Vera Baird (former Victims’ Commissioner). Nazir Afzal (a former CPS chief prosecutor) has also opined that “The only reason you should release information is to protect the public or to help you identify and find the person that’s missing. That information didn’t do either”.
On the other hand, Martyn Underhill (a former senior detective and Police and Crime Commissioner) said that information relating to Ms Bulley’s mental health (in reference to her “issues with alcohol”) is “crucial” and he said that he was “amazed” this information had not been released earlier. Peter Fahy (former Chief Constable of Greater Manchester Police) expressed his disappointment with the fact “that certain politicians have not perhaps tried to give this a more balanced view” and explained that “The police need the help of the public in providing information and the public need to know if something serious has happened in their community”. As pointed out by Robert Jenrick (Home Office Minister), “we’re not privy to the police’s conversations with Nicola Bulley’s family and I don’t think it would be right for us to speculate on why they’ve chosen to make those comments”. The family have also said that they were aware in advance of the information which would be released and that “Although we know that Nikki would not have wanted this, there are people out there speculating and threatening to sell stories about her”.
Investigations into the handling of the case have since been launched by the Independent Office for Police Conduct (IOPC) and the Information Commissioner’s Office (ICO), as well as an internal review by Lancashire Constabulary. On 17 February 2023, the Information Commissioner (John Edwards) released a statement in which he questioned whether the disclosure of Ms Bulley’s private information contravenes UK data protection law, as whilst “Police can disclose information to protect the public and investigate crime…they would need to be able to demonstrate such disclosure was necessary”.
So, what personal information can, and should, the police disclose during high profile investigations? In the Nicola Bulley case, the police understandably felt their investigation was being hindered by the uninformed mainstream and social media coverage, and the intervention of outside ‘experts’. It was also adding to the dreadful toll on the Bulley family, not least because it included utterly baseless speculation about the possible involvement of her partner and members of the local community. This appears to have been what led to the decision by Lancashire Constabulary to disclose the personal information about Ms Bulley in their statements.
From a legal perspective, a claim for misuse of private information (MPI) arises from the wrongful accessing or publication (or threatened publication) of personal information to third parties. In a claim for MPI the claimant must establish that they had a reasonable expectation of privacy in relation to the information. Once that hurdle has been cleared, the claimant’s rights under Article 8 of the European Convention on Human Rights (the right to respect for private and family life) are engaged. A court will then conduct a balancing exercise to determine whether those Article 8 rights are outweighed by any countervailing rights (principally Article 10 – the right to freedom of expression).
There is no doubt that the information disclosed about Ms Bulley’s “issues with alcohol” and “struggles with the menopause” was information in respect of which she had a reasonable expectation of privacy. The police, with the family’s probably somewhat anxious acquiescence, presumably came to the view that unless this was put in the public domain the speculation and disruption to the investigation and the family would have continued and intensified.
Was this an appropriate and justified judgment call? Did the public interest in seeking to quell the activities of the keyboard warriors, the social media detectives and the wide-ranging media coverage outweigh Ms Bulley’s expectation of privacy in relation to the intensely personal information about her being communicated to the world at large? One could certainly make that argument. Did it advance the prospect of Ms Bulley being found? Probably not.
The privacy concerns extended beyond the tragic discovery of Ms Bulley’s body. In addition to the investigations into the actions of Lancashire Constabulary, Ofcom has requested explanations from Sky News and ITV in response to a complaint made by Ms Bulley’s family about the two broadcasters’ conduct upon the discovery and identification of her body.
In a statement released by Lancashire Constabulary on behalf of the family on 20 February 2023, they refer to Sky News and ITV specifically, explaining that those broadcasters had made direct contact with the family after they had “expressly asked for privacy” which is potentially a breach of section 8 (Privacy) of The Ofcom Broadcasting Code. Section 8.3 states that “When people are caught up in events which are covered by the news they still have a right to privacy in both the making and broadcast of a programme unless it is warranted to infringe it.”
The ongoing investigations will no doubt reach conclusions about all of this. However, an important fact to note is that courts apply “an intense focus on the facts of the case” when determining privacy claims. This is recognition that in such personal matters, every case is different and fact-specific. Precedents are not set on the basis of the factual background (although the categories of private information have been quite well established). The facts in this (and each) sad case are likely to be unique. Different considerations will need to be taken into account in every other high-profile case which arises in the future.
In addition to privacy, one also needs to consider defamation in the context of this case. A claim for defamation arises if allegations are published which have caused, or are likely to cause, serious harm to the reputation of the claimant. The long-standing common law requirement is still relevant, namely that the allegations must also lower the claimant in the estimation of right-thinking members of society.
Inevitably, the media and social media coverage was not just confined to speculation about Ms Bulley’s possible whereabouts. It also included allegations about Ms Bulley’s partner, Paul Ansell, and others close to the family. The statement made by Ms Bulley’s family addressed this head-on when it said that “…it saddens us to think that one day we will have to explain to them [Ms Bulley’s daughters] that the press and members of the public accused their dad of wrongdoing, misquoted and vilified friends and family…”.
This has given rise to some debate surrounding the regulation of the press, with the media, not surprisingly, closing ranks to deflect criticism. For example, the trade magazine, The Press Gazette asserted that “The press did not vilify Paul Ansell and there is no evidence editors sought to buy and publish stories about the private life of his partner Nicola Bulley”, indicating that much of this was on social media.
This has been echoed elsewhere. In an interview with Times Radio, the former senior CPS prosecutor, Nazir Afzal, refers to social media users (whom he says are often referred to as “amateur sleuths” and “conspiracy theorists”), indicating that the online activities of some of them in respect of Ms Bulley’s disappearance have been “massively defamatory”. Afzal goes on to state that “If I was a lawyer for the family I would be finding these people and suing them…”. One suspects the financial and emotional resources of the family are unlikely to render that a realistic prospect.
In another interview, with TalkTV, Afzal discusses the responsibility of social media platforms to “ensure people don’t tell lies and don’t tell lies that are damaging to somebody”. However, this responsibility is not always realised, as is evident from the revelation by Twitter insiders that the platform “is no longer able to protect users from trolling, state-co-ordinated disinformation and child sexual exploitation”. Afzal also suggests that “when the social media platforms fail, then there is a need for some legislation”, suggesting that “the Government need to look…at a new offence of obstructing a police investigation through the dissemination of information that you know to be false”.
This is an admirable hope, but the experience of successive Governments’ failure to get to grips with controlling the damaging material which is published on social media in all its myriad forms leaves one sceptical about whether there will ever be any meaningful and successful attempt to grasp this nettle. The global genie of the internet escaped the bottle long ago. The Nicola Bulley case just serves to demonstrate the problems this can cause.
A version of this article was published in the New Law Journal in March 2023 (www.newlawjournal.co.uk).
The authors would like to thank Adele Ashton for contributing to this article.