Sir Cliff Richard OBE V The British Broadcasting Corporation; The Chief Constable Of South Yorkshire Police  EWHC 1837 (Ch)
The UK High Court has found that the British Broadcasting Corporation (BBC) infringed the privacy of renowned musician Sir Cliff Richard (Sir Cliff) by broadcasting a raid by the South Yorkshire Police (the SYP) following an allegation of historical sexual offences.
In June 2014, the SYP became aware of an allegation that in 1986 Cliff Richard had sexually assaulted a boy under the age of 16 at a show by renowned preacher Billy Graham. As part of the investigation, the SYP planned a search of Sir Cliff's property in Berkshire, England.
The BBC received a tip-off from a confidential source outside the SYP about the police investigation into Sir Cliff. On the basis of this tip-off, the BBC approached the SYP and pressed for further details on the investigation.
The SYP was concerned that if it did not provide the BBC with details of the date of the search, the BBC would reveal the existence of the investigation, which the SYP argued could result in potential evidence being removed or destroyed.
The SYP gave the BBC less than 24 hours' notice of the search, which was conducted on 14 August 2014. The BBC broadcasted the search and named Sir Cliff as the owner of the property. The BBC's coverage included the use of a helicopter to fly over Sir Cliff's property and footage of police entering the property and removing items to take away as part of the investigation.
In June 2016, Sir Cliff was informed by the Crown Prosecution Service that he would not be charged, and commenced proceedings in the UK High Court against both the SYP and the BBC.
Sir Cliff claimed that both the BBC and the SYP violated his right to privacy. The SYP accepted liability, apologised and agreed to pay Sir Cliff damages of £400,000, seeking contribution from the BBC. The BBC resisted the claim, claiming that any right to privacy that Sir Cliff had was outweighed by the public interest in BBC's freedom to publish.
The court found the BBC liable for infringing Sir Cliff's privacy rights when it disclosed the investigation and found the SYP liable for infringing on Sir Cliff's right to due process in respect of the investigation. The right to privacy flows from Article 8 of the European Convention on Human Rights (Convention), as introduced into English law by the Human Rights Act 1998 (UK). Article 8 provides that everyone has the right to respect for his private and family life, his home and his correspondence. Sir Cliff was found to have a legitimate and reasonable expectation of privacy in relation to a police investigation, and this expectation was not disqualified by Sir Cliff's fame.
The Court recognised the BBC's right to freedom of expression under Article 10 of the Convention, and the very significant public interest in the fact of police investigations into historic sex abuse. However, this competing right had to be balanced against Sir Cliff's right to privacy.
In weighing Sir Cliff's right to privacy against that of the BBC's freedom of expression, the court found that the BBC:
had used knowledge of the matter obtained from a confidential source to pressure SYP to reveal the details about the raid;
had been told by a senior police officer that he was not convinced that the complainant's evidence was strong enough to go to court; and
ought to have known that the information was confidential and sensitive based on how it was obtained.
The manner of the publication was also a factor – the BBC "went in for an invasion of Sir Cliff's privacy rights in a big way" and "magnified" the consequences of any disclosure. The stigma of the accusation and the likelihood that some members of the public will equate suspicion with guilt outweighed any right to publish the information.
The veracity of information was not at issue in the case. In balancing the competing rights, the Court acknowledged that not everything that is true should necessarily be published.
BBC's own internal policy reflected the balancing act, which provided that private information should not be brought into the public domain unless there is a public interest that outweighs the expectation of privacy. The court found that in this instance the scales were tipped firmly in Sir Cliff's favour and awarded Sir Cliff over €600,000 in damages.
Interestingly, the damages include an amount for the damage done to Sir Cliff's reputation – traditionally the domain of defamation proceedings. The award of damages was equally a balancing act between contributing to an illegitimate chilling effect on legitimate journalism and granting Sir Cliff proper compensation for the wrongs committed against him. The award took into account the following factors:
distress, damage to health, invasion of Sir Cliff's privacy, damage to dignity status and reputation;
general adverse effect on his lifestyle;
nature and content of the private information revealed;
scope of the publication; and
presentation of the publications (e.g. sensationalist approach).
The decision has raised immediate concerns that the press will be reluctant to cover serious investigations into wealthy individuals. This is particularly relevant in the current climate of public discussions of repeated criminal activity on social media, most recently including the "me too" movement
However, the Court made it clear that this decision was restricted to the facts, including the manner in which the BBC obtained prior knowledge of the raid and the Court's finding that the SYP did not want the BBC to publish in order to encourage other people to come forward. The right to freedom of expression or the existence of a duty to publish is not unrestrained. The Court pointed to the legislative authority restraining the freedom of the press in the form of the Human Rights Act 1998 (UK).
In the UK High Court's view, there is public interest in the fact or existence of police investigations into historic sex abuse including the fact that those investigations are pursued against those in public life, but there is not necessarily a public interest in identifying those under investigation until charged.
The full text of the decision is available here.
Adam Fyfe is a lawyer at Ashurst.