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Sir Cliff Richard vs the BBC: Redrawing the Boundaries of Privacy?

Posted on 25 July 2018

Sir Cliff Richard vs the BBC: Redrawing the Boundaries of Privacy?

Sir Cliff Richard has scored an emphatic win in his privacy claim against the BBC but, critical as the ruling was, it does not obviously, as the BBC has since claimed, mark "a dramatic shift against press freedom".

The claim arose from the BBC's coverage of a raid by South Yorkshire Police (SYP) of Sir Cliff's home in 2014, in the context of an investigation into alleged historic sexual offences against a minor. SYP had, according to the Judge, been "manoeuvred" into confirming Sir Cliff's name to a BBC reporter who had approached them with an anonymous tip-off. The BBC then not only named Sir Cliff as a suspect (he was never arrested or charged), but also broadcast live (including helicopter) footage of the search with a "significant degree of breathless sensationalism". Reflecting what he held to be a serious and unjustified invasion of privacy, the Judge awarded Sir Cliff £210,000 in general damages, including £20,000 in aggravated damages.

The human rights framework of the decision is key. Privacy law in the UK is underpinned by the European Convention for the Protection of Human Rights, which is incorporated into domestic law by the Human Rights Act 1998. Where a claimant complains of a breach of privacy, he must first show that his rights under Article 8 of the Convention were engaged, or that he had a "reasonable expectation of privacy". If those rights come into conflict with the defendant's equal, but competing rights to freedom of expression under Article 10, the courts must perform a balancing exercise. In Sir Cliff's case, despite what the Judge recognised as a very significant public interest in reporting on investigations into historic sex abuse, the scales tipped in favour of privacy, where the impact of the infringement was "very materially increased" by the style of reporting.

What has caused concern among the BBC, and others, is the Judge's finding that, as a matter of principle, a suspect in a police investigation has a reasonable expectation of privacy. This is on the basis that, in practice, the public has an imperfect understanding of the presumption of innocence, so there is an inevitable stigma that attaches to the mere fact of being under investigation. It is also in line with College of Policing guidance, which urges police not to name those arrested or suspected of a crime, save in exceptional circumstances, where there is a legitimate policing purpose. That purpose might include a threat to life, the prevention or detection of crime, or where police have made a public warning about a wanted individual.

SYP did not – at least not at the search stage – intend to name Sir Cliff. They were not "shaking the tree" to bring to light new evidence or witnesses, nor did they have any relevant operational concerns. In other words, there was no good reason to depart from the usual (police) course of preserving suspect anonymity. But that will not always be the case. The Judge made clear that he was laying down a general, not a universal rule, and he made no findings as to whether an arrest should ordinarily remain private. As he said, there is no invariable right to privacy, and there may be "all sorts of reasons why, in a given case, there is no reasonable expectation of privacy, or why an original reasonable expectation is displaced."

Likewise, the finding that even a "lower key", less dramatic report of the search and investigation would have been unlawful must be understood in the context of the fact-specific balancing exercise. As a public figure (and therefore, the Judge accepted, more vulnerable to false complaints), and as a suspect in this particular investigation, Sir Cliff's expectation of privacy would have been hard to displace or outweigh: "Knowing that he was under investigation might be of interest to the gossip-mongers, but it does not contribute materially to the genuine public interest in the existence of police investigations in this area." A different claim, in different circumstances, not least in the context of a more advanced investigation – at the point of arrest and beyond – might well yield a different result.

To the extent then, that the legal ground has shifted, it is to bring case law on the reporting of police investigations in line with existing police guidance, and to introduce a presumption that suspects enjoy a reasonable expectation of privacy, in the first stage of what will always be a balancing exercise. That may make reporting on police searches or the early stages of a police investigation more difficult, but at the same time more careful, and considered. More broadly, the ruling should remind publishers that public figures are "not fair game for any invasion of privacy" and that, far from serving the public interest, reporting that strays from the merely factual into the sensationalist, will be harder to justify.

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