Posted by Mei-Ling Huang, Partner
The High Court tips the balance between the right to privacy and the right to freedom of expression.
In what has been a very busy week for privacy law, MEPs have voted to suspend the EU-US Privacy Shield, Facebook faces a fine of £500,000 for data breaches in the Cambridge Analytica scandal, and now Sir Cliff Richard has won his privacy case against the BBC over its coverage of a police raid on his home.
In 2014, the BBC flew a helicopter over Sir Cliff’s home to film and broadcast a police raid taking place as part of an investigation into historical child sex allegations made by a man claiming to have been assaulted by Sir Cliff in 1985. South Yorkshire Police had worked with the BBC to provide advance knowledge of the raid.
Sir Cliff strongly denied those claims and no charges were brought. He settled out of court with South Yorkshire police before the trial started but spent millions of pounds bringing a claim against the BBC for the invasion of his privacy.
A “very serious invasion” of privacy.
High Court Judge Mr Justice Mann held yesterday that the BBC had infringed Sir Cliff’s right to privacy in a “serious and sensationalist” way and rejected the BBC’s argument that its reporting of the raid was justified under rights of freedom of expression and of the press. He said that there was a “reasonable expectation of privacy” for a suspect in a police investigation but that whilst an investigation of Sir Cliff “might be of interest to the gossip-monger”, there was not a “genuine public interest” case.
Mr Justice Mann awarded an initial £210,000 in damages with another hearing to follow to determine whether further damages should be paid after Sir Cliff said his plans for professional work were seriously disrupted after the coverage was aired. He said that he had been left in “creative limbo” until prosecutors confirmed that he would not face any charges.
A “significant shift” against press freedom.
Fran Unsworth, Director of News and Current Affairs, has issued the following statement on behalf of the BBC:
“This judgment creates new case law and represents a dramatic shift against press freedom and the long-standing ability of journalists to report on police investigations, which in some cases has led to further complainants coming forward.
This impacts not just the BBC, but every media organisation.
This isn’t just about reporting on individuals. It means police investigations, and searches of people’s homes, could go unreported and unscrutinised. It will make it harder to scrutinise the conduct of the police and we fear it will undermine the wider principle of the public’s right to know. It will put decision-making in the hands of the police.
We don’t believe this is compatible with liberty and press freedoms; something that has been at the heart of this country for generations.
For all these reasons, there is a significant principle at stake. That is why the BBC is looking at an appeal”.
Newspaper editors and media lawyers have also said that the ruling is tantamount to new legislation.
Although Mr Justice Mann acknowledged that the case could have a “significant impact on press reporting”, he said that it did not mean he was setting a precedent for future cases, as the Human Rights Act already covers the issues of the right to privacy v the right to freedom of expression.
Calls continue for what is now being dubbed “Cliff’s law”, which would stop suspects being named by the media until such time as they are charged.
This is yet another case where the right to privacy and the right to freedom of expression compete with each other and it highlights the difficulty in striking the balance between the rights of all those involved in an investigation whilst also ensuring a transparent process takes place. There is still some uncertainty on whether the law in this area will change, or at the very least whether any guidance will be provided on the balance between an individual’s right to privacy and the media’s right to cover an investigation. We will be keeping a close eye on how the BBC responds and whether any appeal will go ahead.
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