3. August 2018
Following a 13 day trial, Mr Justice Mann recently handed down his judgment in the case brought by Sir Cliff Richard against the BBC and South Yorkshire Police ("SYP"). The judgment is important for all media law practitioners for various reasons, including the ruling that, as a general principle, a suspect has a reasonable expectation of privacy in a criminal investigation, including any search involved. Sir Cliff was also awarded the highest level of general damages in any case of this kind, (some claimants in phone hacking cases have recovered more) and the judge made it very clear that damage to reputation was recoverable in a claim brought under the tort of misuse of privacy information. This article sets out a summary of the main points.
In 2014 and unbeknownst to him, Sir Cliff Richard became the subject of a police investigation in relation to an allegation of a historic sex offence and was investigated as part of Operation Yewtree ("OYT").
In early June 2014 BBC reporter, Daniel Johnson, found out about the story from an unknown source (an associate of OYT) and called SYP to verify it. Upon learning that the BBC knew of the confidential details of the investigation, SYP decided to co-operate with the BBC and they had a meeting at which they confirmed the details and disclosed further details of an intended search of Sir Cliff's premises, the date of which SYP promised to inform the BBC of in advance.
There was dispute over the extent to which SYP co-operated voluntarily with the BBC in providing further information; SYP said it made its offer because it felt pressured by an implicit threat that the BBC would publish a story about the investigation before SYP were ready to search the premises, compromising the investigation. The BBC said SYP wanted it to be its messenger to get the matter out into the public domain for their own publicity. The judge ultimately sided with SYP based on the evidence and found that they were motivated by a desire to remove the risk of premature publication, agreeing to disclose the search date in return for non-publication. This finding affected the judge's reasoning.
SYP told the BBC the day before the search and confirmed the property details. The BBC arranged for journalists to attend and a helicopter was hired to film the search. They also sent journalists to Sir Cliff's homes in Portugal and Barbados. The BBC was very anxious to protect their exclusive, did not consider privacy (only accuracy) and knew that the broadcast would have a serious impact.
Very little warning was given and Sir Cliff (who was in Portugal) did not find out about the criminal allegation until just before broadcast, and did not know it had been made public until friends contacted him telling him about the news broadcasts they had seen.
The BBC identified Sir Cliff in their extensive broadcast coverage of the search on the day, which first broke on the lunchtime news. The police made a statement to camera but did not name Sir Cliff. There were 44 BBC TV broadcasts on day one, each similar to the last, but with developing snippets, and a further 15 on day two. 3.2 million viewers watched the first lunchtime news broadcast. Every other news organisation subsequently took up the story. The BBC published various online articles, one attracting 5 million hits. The story was front page news the following day on practically all major print publications. Coverage was extensive and worldwide.
Sir Cliff delayed returning to his home in Portugal but was door-stepped for weeks afterwards when he did. The coverage had a serious emotional and physical toll on him during and after the investigation. He remained under investigation until June 2016, when it was announced that no charges would be brought.
He sued the BBC and SYP for breach of privacy and his rights under Data Protection Act (1998) – a claim which the judge ultimately did not deal with – for substantial damages. SYP admitted liability, apologised and agreed to pay damages (£400,000) and to a statement in open court, plus a payment of costs on account (£300,000). The BBC fought on, but lost the case and Sir Cliff was awarded £190,000 in general damages and £20,000 in aggravated damages with special damages to be assessed. SYP also claimed for a contribution from the BBC, which was granted at the ratio of 35% to 65% against the BBC. Permission to appeal has been refused by the trial judge.
The judge held that Sir Cliff had a reasonable expectation of privacy in relation to the investigation and the search against SYP (which the BBC accepted) and that this, following the decision in ZXC, was a fact sensitive question. The judge also held that, as a matter of general principle and based on the authorities, a suspect has a reasonable expectation of privacy in relation to a police investigation as a suspect would not want others to know because of the stigma attached (making it clear that his decision would be different if there was a realistic presumption of innocence in such cases and the public kept an open mind about such issues removing the risk of being tainted). A reasonable person would objectively consider that to be the case and this was not a case where the police wished to give publicity to see if there were other allegations relevant to their investigation.
The judge also held that Sir Cliff had a reasonable expectation of privacy with regards to the BBC. The starting point is that the nature of the receipt cannot change the quality of the information. If the information is private, it remains so unless disclosed in a way which removes that privacy. The fact that the information came into the hands of the media did not remove or destroy that – Sir Cliff had a reasonable expectation, and any tension between Articles 8 and 10 was resolved at the second stage. Nothing changed when the BBC acquired further private information from SYP, and they acquired it in circumstances which did not destroy its privacy. The nature of the offence being investigated reinforced the reasonable expectation because of the damage it could do if published. The judge rejected the notion that Sir Cliff, as a public figure, was deprived of a reasonable expectation of privacy and he had not waived or courted publicity to the contrary.
In relation to whether obtaining a search warrant in the Magistrates Court deprived Sir Cliff of any reasonable expectation, the judge said: "It cannot be plausibly suggested that the reasonable expectation is lost when the evidence reaches a certain level without more, so it cannot matter that, in conjunction with that level, a magistrate is satisfied enough to grant a warrant. The obtaining of a warrant is a judicial event, though it is obtained in private, (albeit principally so as not to tip off the suspect), so there is no necessary loss of privacy arising out of the procedure".
As for the search itself, he said that the circumstances of the execution of a warrant may involve a certain compromise of privacy in the investigation, but privacy is not automatically lost. The search would have to be carried out with due regard, which is why the police do not now identify the subject of the search. Even if the neighbours might know, they may not know why there is a search and privacy is not inevitably lost. A search does not in itself remove a reasonable expectation of privacy and it should be treated as part of the investigation.
The judge applied the following factors to take into consideration as set out in the Axel Springer case:
This was an objective question. The judge said that the BBC was more impressed by the size of the story and the opportunity they had to scoop their rivals. A report of an investigation into (and search of the premises of) a well-known but unidentified celebrity over the alleged sexual abuse of children was very much a matter of public interest following all the celebrity cases and the Rochdale and Rotherham cases. Therefore, the public had a legitimate interest in knowing at a general level that the police were pursuing alleged perpetrators. However identifying Sir Cliff was not a material addition and did not contribute materially to the genuine public interest in the existence of police investigations. The argument that reporting on the search would encourage other victims to come forward was not pursued in final submissions by the BBC.
To a degree, a person who has placed themselves into public life has a diminished expectation of privacy because the very act of making certain aspects public means that there is a corresponding loss of privacy in those areas. But there is no across the board diminution and it all depends on the extent of the self-induced publicity, and the areas in which there has been a voluntary surrender. Sir Cliff's position as a Christian might make the disclosure of actual conduct which might be unchristian something to which he has rendered himself vulnerable by virtue of his public position, but unsubstantiated allegations into unproved conduct did not fall into the same category. His Christian stance did not justify an invasion of privacy or diminish the weight of his privacy right in respect of allegations.
What the BBC published was accurate, but that was not the issue. The journalist must have known that the information from his source was confidential. The information about the search was not obtained in a straightforward manner, relied on a form of threat to get it and was not volunteered, which weakened the BBC's position. It was significant that the case started with obviously private and sensitive information obtained from someone who ought not to have revealed it – confirmed and bolstered with a ploy in the form of a perceived threat that ought not to have been made. The BBC did not give Sir Cliff or his representatives a fair opportunity for a statement before broadcast. It gave more weight to preserving the scoop – this was the motivation behind timings which led to the BBC unfairly truncating the opportunity to reply.
The content engaged Article 8; it was sensationalist and with a certain urgency, lending false drama with shots of officers entering the building and the helicopter footage, which added sensationalism and emphasis to the scoop. The judge stated "The BBC went in for an invasion of Sir Cliff's privacy rights in a big way". The consequences were immensely serious and are likely to have been magnified by the style of broadcast.
The balancing exercise came down in Sir Cliff's favour, mainly because the consequences were very serious, creating a stigma and other consequences. There was no equally serious justification for naming Sir Cliff and there was no positive obligation to report. The sensationalist style of reporting weighed against Article 10 because it materially increased the impact of the invasion of privacy, but a lower key report would have done as well. The judge rejected the argument that if the BBC's freedom of expression regarding the police investigation was undermined, that should be a matter for Parliament and not the courts, because the Human Rights Act (1998) is the legislative authority for restraining the press.
The BBC conceded that, if it was liable, it would be responsible for the consequences and did not limit liability so as to preclude republications. Therefore, the BBC was liable for the wide publicity by itself and others.
The BBC said they anticipated that the story would have a significant impact on Sir Cliff and would cause serious distress. Sir Cliff had had to watch the search from Portugal, which was highly publicised and portrayed on TV and online for all to see, and which was seen by others before himself via broadcast to a large number of countries. Other channels and newspapers followed suit.
Sir Cliff's evidence was not challenged; he suffered abuse, trolling and one blackmail attempt. He felt trapped in his own home and despair and hopelessness, leading at times to physical collapse. He had trouble sleeping and took sleeping pills. He felt his life's work had been torn apart. He felt tainted, violated and betrayed. He contracted shingles from stress and anxiety, which exceeded what he would have suffered from the investigation by itself. He lost his upbeat nature and did not go to public events. He lost weight. He put his career on hold and his new record and updated autobiography were shelved. Retailers declined to stock his calendars. One charity asked him not to appear at an event with children. He suffered damage to his public status and reputation, and suffered embarrassment, stress, upset, hurt, and some consequential health effects. The BBC accepted that this all stemmed from its coverage.
The judge stated that recovering damage to reputation was possible in a privacy action and that the factors to take into account were: (i) damages for distress, damage to health, invasion of privacy, as well as to dignity, status and reputation (ii) adverse effect on lifestyle (iii) the significant nature and content of private information revealed (the more private, the more significant) (iv) the scope of publication and (v) the presentation of publication. The judge said the effect on Sir Cliff was profound. The content was extremely serious. Publication was worldwide. The coverage was sensationalist so as to hype the event, increase awareness and cause upset and distress. He awarded £190,000 (which he said was not chilling as it was not an excessive figure).
As to aggravated damages, the judge rejected all Sir Cliff's claims, except the submission of the broadcast by the BBC for an award, in respect of which the Judge awarded £20,000 because the BBC promoted its own infringing activity in a way that demonstrated that it was extremely proud of it, causing addition distress by demonstrating its pride and unrepentance and repeating the invasion of privacy.
The judge considered a list of separate special damages claims and gave guidance for the purpose of future resolution using a sample of different events in order to deal with causation. He found that, but for the BBC's broadcast, Sir Cliff would not have had to (a) deal with Facebook group "Christians against Cliff" (b) use lawyers to deal with enquiries from the print and broadcast media (c) deal with an attempted blackmail threat (d) engage via lawyers with the Home Affairs Select Committee inquiry into how the search of his property entered the public domain (e) hire lawyers to deal with US immigration issues (f) take advice on media interviews after the investigation stopped and (g) Sir Cliff would not have lost a book deal advance.
The judge also considered whether causation was established in law. He said: "The starting point to the inquiry is to reflect further on what it is that the privacy right protects. It protects an individual from the consequences of an invasion of privacy in terms of loss of autonomy over the information in question, distress and damaged feelings, and (interacting with the second) some damage to reputation (in some cases, and certainly this one). The protection of those interests is within the scope of the tort."
As to remoteness, the judge found that Sir Cliff's engagement of lawyers "was part of a reasonable and justifiable attempt, targeted at a foreseeable event, to prevent the worsening of Sir Cliff's reputational position (and distress) when that reputational position (and distress) was caused by the BBC and damage to reputation (and distress) is one of the things that privacy law is designed to prevent". He also said that it was foreseeable that the BBC broadcast would increase interest from the "trolling community" While the precise form of the type of attack he might experience was not foreseeable, an attack on his reputation was, falling within the scope of the tort in the same way as if it had been in the print media. It was also reasonable for Sir Cliff to have mitigated the loss to his damaged reputation by taking legal advice on interviews. The judge also found, in relation to the book deal advance, that it was reasonably foreseeable that a commercial opportunity based on reputation could be lost based on damage to that reputation, and said this was also recoverable. Losses incurred in dealing with US immigration issues and the Select Committee fell outside the scope of damages of the claim as they were not foreseeable.
To make matters worse for the BBC, the SYP made a claim against them under the Civil Liability (Contribution) Act 1978, which was accepted. The judge decided to split damages, 65% in favour of the BBC and 35% in favour of SYP, and applicable to damages for which they were jointly responsible.
The judge rejected the BBC's argument that, due to its Article 10 rights and the fact that it is a news organisation, there could be no effective claim for contribution because SYP, as a public authority, only has duties under the 1978 Act and cannot be a 'victim'. He also rejected the argument that a right to a contribution would interfere with the BBC's Article 10 rights because it would be a disincentive to exercising that right. The BBC was liable for the same damage as SYP as its Article 10 rights were outweighed.
The judge also said that a public body should be able to recover a contribution from a joint wrongdoer, and the objective of Article 10 is not damaged by that contribution: "the concept that a co-wrongdoer should share the burden is entirely appropriate (if not necessary) in a democratic society. I cannot understand why the non-state perpetrator should get off financially scot-free. Nor am I troubled by the absence of any authority which supports this position. That could well be because it is obviously right."
Mann found that the BBC was the 'more potent causer' of the damage and its breach more significant than that of SYP. He based this decision on the fact that the BBC journalist already had information about Sir Cliff before he approached SYP, and he must have known that information was given to him in breach of confidence. SYP furthered that breach because they confirmed the journalist's information, and then gave him further information, although he held that SYP felt pressured (as already explained). It was the act of publication that did the damage and the decision to publish was entirely the BBC's, as was the manner in which it was published and sensationalised.
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