Media reporting restricted after Sir Cliff Richard decision
In what instances can journalists name the suspect of a police investigation? Do such suspects have a "reasonable expectation of privacy"?
In August 2014 the BBC reported on a police search which had occurred at Sir Cliff Richard's apartment in Berkshire (carried out by South Yorkshire Police). The BBC's reporting revealed that Sir Cliff was being investigated in relation to the sexual assault of a child in the 1980s. Sir Cliff was never arrested or charged as a result of the investigation.
South Yorkshire Police had confirmed to the BBC that the investigation concerned Sir Cliff, they had provided advance notice of the search of Sir Cliff's apartment, and they had also facilitated the BBC's coverage and reporting on the day.
In May 2017 South Yorkshire Police reached a settlement with Sir Cliff, admitting liability in relation to his claim and paying Sir Cliff £400,000 for general and special damages. The police also made a payment on account of £300,000 costs for which they are liable.
Sir Cliff claimed that the BBC's reporting of the search was a serious invasion of his privacy, whilst the BBC contended that its reporting was justified under rights of freedom of expression and of the press. Sir Cliff also made a claim under the Data Protection Act 1998 but it was accepted that this added nothing to the claim for the breach of privacy claim.
In July 2018, the High Court handed down its judgment in favour of Sir Cliff. The court awarded general damages to Sir Cliff of £190,000, along with aggravated damages of £20,000. It was also held that the BBC and South Yorkshire Police were jointly responsible for £185,000 of these damages (at 65% and 35% respectively). Further, the court found that the BBC's reporting has caused Sir Cliff to incur financial losses and expenses. There is a second trial scheduled to determine the remaining issues regarding special damages and any contribution payments.
In making its judgment, the court determined that a suspect in a police investigation generally has a 'reasonable expectation of privacy' in relation to such investigation and this expectation generally endures even when a search of their property has occurred. Further, the fact that information regarding the investigation has reached the media does not change the presumptively private status of the suspect.
The BBC reporter who broke the story had received information from an unofficial source regarding the investigation, and in turn contacted South Yorkshire Police, suggesting a story would or may be published. South Yorkshire Police then confirmed the story, offered further information and offered to alert the BBC of the search. In these circumstances, the court held that the expectation of privacy remained intact:
"…nothing was different when Mr Johnson acquired more information from (or had it confirmed by) SYP. He was acquiring private information in circumstances which did not destroy the privacy. It was not disclosed for good operational reasons. It was disclosed because Mr Johnson had wrongfully exploited the previously acquired confidential information to manoeuvre SYP into its further disclosures, which SYP misguidedly made."
The court considered that if an anonymised report had been published, it would have contributed to a debate of general public interest, but the naming of Sir Cliff added nothing of material value to the reporting. The judge commented that if he was wrong about the naming of Sir Cliff adding nothing to the investigation, "it is heavily outweighed by the seriousness of the invasion".
On the issue of damages, the court rejected the BBC's argument that damages for misuse of private information should not include any compensation for damage to reputation; instead the damages award took account of the significant effect on Sir Cliff, including on his dignity, status, reputation, health and well-being. Sir Cliff's claim for aggravated damages was ultimately rejected, except for the BBC's decision to put its coverage forward for an industry award, which the court held merited aggravated damages of £20,000.
Why is this important?
The High Court's decision in this case sets a worrying precedent for journalists and news outlets; despite finding that what was broadcast about the search was accurate, the court held that the mere naming of Sir Cliff was unlawful. As such, even if the broadcast had been run with less prominence, it would have been unlawful. The new precedent set by the judgment represents a significant shift against the freedom of the press and their ability to report on police investigations. Media organisations will now be very reluctant to report information regarding police searches, and many may go unreported and unscrutinised.
Any practical tips?Media outlets must now be very careful when considering reporting on police inquiries and investigations. The court's decision to rule in favour of Sir Cliff, despite recognising that 'the case is capable of having a significant impact on press reporting' and the BBC's decision not to appeal the ruling, has left journalists and media outlets in a precarious position. Considering the high level of damages, organisations may well start adopting more cautious reporting strategies, but at what cost to press freedom?