High Court finds right of freedom of expression outweighed by right to privacy in relation to press coverage of police investigation

In a recent decision, the High Court engaged in the exercise of balancing a broadcasting organisation's right to freedom of expression under Article 10 of the European Convention of Human Rights ("ECHR"), against the right to privacy of the target of a police investigation under Article 8 of the ECHR. It was held that the subject of the investigation had a legitimate expectation of privacy in respect of the fact of the police investigation and that the Article 8 right outweighed the Article 10 right on this occasion: Sir Cliff Richard OBE v The British Broadcasting Corporation and The Chief Constable of South Yorkshire Police [2018] EWHC 1837 (Ch).

The BBC has indicated in a recent press release that it may appeal the decision, stating that the High Court judgment "creates new case law and represents a dramatic shift against press freedom" which is not "compatible with liberty and press freedoms". Hyperbole aside, this judgment has provided welcome clarification of certain aspects of the law of privacy.

First, the court held that "on the authorities, and as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation". In making that ruling, the court paid heed to the reality of the social stigma which surrounds suspects in police investigations, acknowledging that the presumption of innocence is not perfectly understood and applied, and the public is not universally capable of keeping an open mind.

Secondly, the court held that reputational damage can be taken into account in assessing damages for privacy claims. Reputational damage is not, therefore, the sole province of defamation (as the BBC had argued).

As a matter of more general interest, in weighing the claimant's Article 8 rights more heavily than the BBC's Article 10 rights, the court accorded substantial weight to the questionable way in which he found the BBC had obtained its information. This will no doubt place the motives and methods of media organisations, and what may previously have been regarded by them as "good old fashioned journalism", under potentially uncomfortable scrutiny.

Neil Blake, Christopher Cox and Angela Liu consider the decision further below.

Background

In 2014, the claimant, a well-known entertainer, came under investigation in relation to allegations of a historic sex offence. The investigation was conducted by the second defendant, the South Yorkshire police force ("SYP"), and was dropped in June 2016 with no charges brought against the claimant.

As part of the investigation, the SYP carried out a search of the claimant's home on 14 August 2014. The first defendant, the BBC, gave prominent and extensive television coverage to the search, identifying the claimant as the subject of the investigation. The story reached millions of viewers on the day itself, and was subsequently taken up by other news organisations and major print publications.

The claimant brought claims against both the BBC and SYP for violating his rights under Article 8 of the ECHR and under the Data Protection Act 1998 ("DPA"). He gave evidence that the effects of the alleged violation had taken a serious emotional and physical toll on him over a considerable period of time.

While the claimant and SYP reached a settlement, with SYP accepting liability in addition to paying damages and costs to the claimant, the BBC continued to resist the claim. The following issues therefore came before the High Court in early 2018:

• Whether the claimant had a legitimate expectation of privacy in relation to the investigation and the search;
• If the claimant prima facie had such rights, whether the BBC was nonetheless justified in publishing by virtue of its rights of freedom of expression; and
• If the claimant's article 8 rights prevailed, whether there was an infringement and, if so, what damages flowed from that.

The court did not consider issues arising under the DPA as it considered that the DPA claim added nothing to the privacy claim. Contribution proceedings between the BBC and SYP were also considered but are not dealt with in this post.

Decision

The High Court (Mann J) held that the BBC was liable for infringing the claimant's privacy rights and was liable to pay £210,000 in damages in addition to special damages claims.

The claimant's legitimate expectation of privacy

The claimant's right to privacy in this case flowed from Article 8 of the ECHR. As a starting point, Mann J held that a police investigation would give rise to a prima facie legitimate expectation of privacy given the stigma attached to investigations, though the expectation could be displaced in certain cases (eg for good operational reasons). In the present case, the legitimate expectation was not displaced so far as SYP was concerned.

A number of arguments were raised by the BBC and dismissed by Mann J in relation to the claimant's legitimate expectation of privacy as against the BBC:

• The expectation of privacy was not removed when the investigation moved on to the phase of a search carried out under a search warrant. The search should be treated as part of the investigation; obtaining the warrant and the search itself did not require any loss of privacy.
• The claimant's status as a public figure did not detract from his reasonable expectation on the facts of the case. While a public figure may waive a degree of privacy by courting publicity at odds with the privacy rights claimed, that did not apply in the present case.
• The fact that the information had passed from the hands of the police to the hands of the media did not affect the private nature of the information per se: ie if the information starts out as private, it retains that quality when disclosed in circumstances that do not in themselves remove the privacy.

The court therefore held that the claimant did have a legitimate expectation of privacy vis-à-vis both the BBC and SYP.

The BBC's right of freedom of expression

The BBC's right of freedom of expression flowed from Article 10 of the ECHR. In balancing the claimant's Article 8 right against the BBC's Article 10 right, the court considered a number of factors derived from the European case Axel Springer v Germany App no. 39954/08 (ECtHR, 7 February 2012).

1. Contribution to a debate of public interest

Mann J considered that while general information about the investigation (eg that high profile individuals may have engaged in sexual offences) did contribute to a debate of general public interest, the identification of the claimant as the specific subject of the investigation did not.

2. Public status of the claimant and his prior conduct

Although making certain aspects of oneself public must lead to a corresponding loss of privacy in those areas, it does not follow that there is a wholesale diminution of the effect of one's privacy rights (Rocknroll v Newsgroup Newspapers Ltd [2013] EWHC 24 (Ch)). It was concluded that the claimant had not "self-diminished" the weight of his right to privacy in respect of the allegations underlying the BBC's disclosures, and therefore the disclosures themselves, simply by being a public figure.

3. Method of obtaining the information and its veracity

While the veracity of the published information was not in issue, the BBC's method of obtaining the relevant information was questionable. Mann J found that the BBC journalist, who had obtained information about the investigation from a third party, obtained SYP's confirmation of that information and notice of the intended search by giving the false impression that he had a story that he could and would publish, which the SYP believed would prejudice the investigation. The judge held that the SYP confirmed the fact of the investigation and of the intended search because of the BBC's implicit threat, and the BBC therefore knew that the information was not volunteered freely by SYP. This threat could not be justified as the publication began with obviously private and sensitive information, obtained from someone the journalist knew should not have revealed it.

In addition, while the court considered it a fairly minor point given the other facts of the case, the BBC did not provide fair opportunity for the claimant to give a right of reply before the broadcast, as required by their own Editorial Guidelines.

4. Content, form and consequences of the publication

The significant degree of sensationalism with which the broadcasts were presented and the consequent magnification of the consequences of disclosure for the claimant were also taken into account.

5. Severity of the sanction imposed

Mann J considered whether any given sanction would cause a "chilling effect" on reporting in determining the level of damages to award (as addressed further below).

In light of the above factors – particularly the content, form and consequences of publication – Mann J concluded that the claimant's privacy right was not outweighed by the BBC's right to freedom of expression in this case. He added that if he were wrong about the lack of public interest in identifying the subject of a police investigation, that public interest would still be heavily outweighed by the seriousness of the invasion of privacy. All other factors also supported the claimant's case.

Damages

The BBC submitted that damage to reputation could not be compensated in a privacy claim. Mann J rejected this argument, following the Supreme Court's judgment in Khuja v Times Newspapers Ltd [2017] 3 WLR 351, which held that the protection of reputation was part of the function of the law of privacy as well as the law of defamation.

Mann J therefore weighed up a number of factors and found that the BBC's publication had had a "profound" effect on the claimant, both in respect of his health and well-being and also his dignity, status and reputation. On this basis, Mann J assessed general damages at £190,000. He considered that this figure would not have a chilling effect on reporting because it was a genuine compensatory figure and was not excessive or punitive.

Mann J also awarded £20,000 in aggravated damages specifically for the BBC's decision to submit its broadcast of the search for the "Scoop of the Year" award.

The court further made determinations of causation in respect of certain heads of potentially substantial special damage, which unless settled will be quantified by the court later.