Privacy: where now?

In Richard v The British Broadcasting Corporation (BBC) & South Yorks Police [2018] EWHC 1837 (Ch) Mann J was concerned with the balance of an individual’s privacy, as against the extent of the freedom of the media to publicise information which it acquires. It has nothing directly to do with – for example – the court’s open justice principle (see eg A v British Broadcasting Corporation [2014] UKSC 25, [2015] 1 AC 558; European Convention on Human Rights 1950, Art 6); or to the secrecy which is said to apply in most family proceedings (Family Procedure Rules 2010 r 27.10). That said, many principles as to openness and court proceedings apply to privacy proceedings (see eg Khuja v Times Newspapers Ltd [2017] UKSC 49, [2017] 3 WLR 351).

For the family lawyer who is concerned with transparency and family courts (ie more openness in relation to family cases) the case raises particular questions. It has been a clear principle of the common law that proceedings concerning minors are held in secret or in private (enunciated in Scott v Scott [1913] UKHL 2, [1913] AC 417; and frequently re-affirmed since). Where a court sits in private, it is not – on its own – a contempt of court to publish its proceedings, save in the case of a defined list of types of case, including children proceedings (Administration of Justice Act 1960, s 12(1)). Unless they want not to (Re Roddy (A Child)(Identification: Restriction on Publication) [2003] EWHC 2927, [2004] 2 FLR 949, per Munby J), children can expect to have anonymity in court proceedings. They are entitled to expect privacy (a concept considered below); though this will not be absolute (eg if a parent is involved in criminal proceedings and the parent’s name is publicised: Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591; R (Trinity Mirror) v Croydon Crown Court [2008] EWCA Crim 50, [2008] QB 770).

Richard v BBC

Mann J summarised the factual background to the Richard case [2018] EWHC 1837 (Ch) at [2]-[4]. Unknown to himself, Sir Cliff Richard (CR), the claimant, had become subject to police investigation by South Yorkshire Police (SYP) for alleged child abuse. Daniel Johnson (J), a BBC reporter, found out about it. He met with SYP and was told about an intended search. He was to be given advanced notice. The search took place on 14 August 2014 and BBC immediately gave extensive television coverage to it, as it was happening and thereafter. CR remained under investigation until June 2016 when it was announced there would be no charges.

He claimed that both BBC and SYP violated his rights both in privacy and under the Data Protection Act 1998 (DPA 1998). He claimed substantial damages because his life and finances have been radically affected by what happened. In May 2017 Sir Cliff reached a settlement with SYP who accepted liability, apologised, made a statement in open court accepting liability, paid Sir Cliff damages of £400,000, agreed to pay his costs and paid £300,000 on account of costs. BBC continued to resist the claim which came before Mann J in April 2018. Judgment is dated 18 July 2018.

BBC was found liable to CR in damages (£210,000) with special damages to be assessed. It has been reported that BBC have decided not to appeal. Mann J’s findings, though controversial in the view of some, especially in the press and other media, represent the law. This article looks only at the privacy aspect (ie not at the subject of damages or other tort issues). Mann J specifically held (at [226]) that the DPA 1998 claim added nothing to the privacy claim. It could be ignored.

Mann J defined the privacy issues he must resolve [225] as follows:

  1. Did CR have a legitimate expectation of privacy in relation to the investigation and the search of his property?
  2. If yes, was BBC justified in publishing information to the investigation by virtue of its rights of freedom of expression?
  3. If he had rights of privacy, was there an infringement of them by either or both defendants, and (if so) what damages follow?

Privacy and the law

The first two stages in this process will be reviewed here.

But first, it is important to record that privacy in law is not an easy subject, where the common law – led by European Convention 1950 jurisprudence – is still feeling its way. Richard may prove to be an important step in its development. Most court decisions are entirely fact specific.

Of five related recent outings in the Supreme Court – privacy against publicity – in the past three years, privacy has been ordered in two cases ((3) and (4) below), and refused in three. And this is so, even though in two of those the privacy claimed – unsuccessfully – was for a child. In only two was there a full house of justices for one course or the other:

  1. Rhodes v OPO [2015] UKSC 32, sub nom O (A Child) v Rhodes [2016] AC 219: the concert pianist James Rhodes wanted to publish an autobiography which described graphically what he had suffered as a child. The American mother of Rhodes’s 12 year old son thought what was said, if read by the child, might damage him psychologically. The Supreme Court allowed publication: if what was said was true, was not defamatory and not intended deliberately to injure. Freedom to publish was given a high premium by the law (see [77]). Appeal allowed by all five SCJJ.
  2. Re JR38 [2015] UKSC 42, [2016] AC 1131: the applicant for judicial review was a 14 year old who had been involved in ‘interface violence’ in Northern Ireland. The police wanted to expose his name. Does the fact that he was a child make any difference to his expectation of privacy? The majority held this was an objective test. Childhood is irrelevant. Art 8 was not engaged. Appeal allowed on a majority, 3:2 SCJJ.
  3. R (C) v Secretary of State for Justice [2016] UKSC 2, [2016] 1 WLR 444: protection of anonymity of mental patient (all five SCJJ agreed).
  4. PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081 – three-way sex interim injunction. Privacy allowed to PJS (and for the sake of his children) by four SCJJ over dissent of Lord Toulson.
  5. Khuja v Times Newspapers Ltd [2017] UKSC 49, [2017] 3 WLR 351 – publicity allowed for name of a police suspect (child sex grooming in Oxford area) who was not ultimately charged of the offences investigated. Appeal dismissed on a majority, 3:2 SCJJ.

Of the five appellants two secured privacy. C, a mental patient kept his anonymity. PJS, at an interim stage, succeeded also; and his children were an important factor (see Lady Hale at [72]). Of the other three, all either were permitted publicity (James Rhodes, in that case freedom of expression for an individual) or had anonymity denied. Publicity ruled the outcome in each case. So on what basis did the publicity question go the other way in Richard?

Reasonable expectation of privacy

Mann J defined the first issue he must deal with as CR’s “legitimate expectation of privacy”. This starts from European Convention 1950 Art 8 (right to respect for private life) balanced against Art 10 (freedom of expression): respectively of CR and of BBC. Balancing the rights, where a conflict arises, he said ([2018] EWHC 1837 (Ch) at [230]), involves the following:

  1. Were CR’s Art 8 rights engaged?
  2. How were such rights, if engaged, to be balanced against the Art 10 rights of the BBC?
  3. Was there a public interest in publishing the information that was published?

First Art 8 rights as a general principle: said Mann J, there is a no “invariable right to privacy” (at [251]); but, that said, the starting point, “as a matter of general principle [is that] a suspect has a reasonable expectation of privacy in relation to a police investigation, and I so rule” said Mann J at [248].

This question turns on the extent to which, first, people generally understand, and give effect to, the presumption of innocence; and, secondly, that everyone is “capable of adopting a completely open- and broad-minded view of the fact of an investigation so that there was no risk of taint either during the investigation or afterwards. This took Mann J to Khuja (above). Lord Sumption gave judgment for the majority in that case. He explained that he was not sanguine as to the ability of the public to distinguish suspicion from guilt. He went the other way on the decision to publicise Mr Khuja’s name, largely on open justice principles.

Mann J accepted the minority view (Lords Kerr and Wilson, at [52] in Khuja) where they quoted Cobb J in Rotherham MBC v M [2016] EWHC 2660 (Fam), [2016] 4 WLR 177 at [39]: that despite the presumption of innocence, where there are false allegations of serious crime investigation “mud sticks”. The fact of a person being a public figure, like CR, made no difference to their entitlement to an expectation of privacy ([256]; and see eg K v News Group Newspapers Ltd [2011] EWCA Civ 439, [2011] 1 WLR 1827 per Ward LJ at [10]; Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, [2009] Ch 481, per Brooke LJ at [36]). Nor was the position altered by the nature of who received the information: in Richard it as the highly respectable BBC. If information starts out as private it remains so, “full stop”, Said Mann J:

“[258] … Sir Cliff’s rights in respect of the information in the hands of the police are not based on a reasonable expectation of privacy as long as the information does not fall into the hands of the media; he has a reasonable expectation of privacy full stop…”

Art 8 was engaged. This was the first hurdle for CR to overcome. Next, what of the BBC’s balancing rights under Art 10 and Human Rights Act 1998 s 12(4); and how did each set of rights weigh one against the other? Mann J considered that CR’s home rights had been invaded; but the disclosure of the police investigation overwhelmed the significance of this invasion. Of the balance between Arts 8 and 10 Mann J drew attention to the “ultimate balancing test”, defined by Lord Steyn in Re S (Identification: Restrictions on Publication) (above) at [17].

Public interest

Human Rights Act 1998 s 12(4) requires the court to take into account the public interest in publication of material. The judge considered this in the light of the factors set out in Axel Springer AG v Germany (2012) 55 EHRR 6, [2012] EMLR 15 (see especially [2018] EWHC 1837 (Ch) at [276]). Assessment of the public interest and its part in drawing the balance depends on the “good faith” of the journalist and on the media providing “reliable and precise information” (at [288]).

The way BBC came by information about, and then reported, the investigation weighed against them. The public interest in knowing about investigations into sexual abuse could not help them in this case (at [317]-[318]). In defining how the balance fell, Mann J concluded that CR’s privacy rights outweighed BBC’s rights to freedom of expression ([315]). The first point he identified was the “mud sticks” point (so important in the Khuja case (see above)):

“[316] … The consequences of a disclosure for a person such as [CR] are capable of being, and were, very serious. The failure of the public to keep the presumption of innocence in mind at all times means that there is inevitably going to be stigma attached to the revelation, which is magnified in this case by the nature of the allegations against him, which were allegations (especially in the then climate) of extreme seriousness. Reporting on the investigation and the search was a serious invasion which required an equally serious justification….”

Damages have been partly defined at this stage. Special damages, and the extent to which the BBC and SYP may respectively be required to contribute to the damages awards, remain to be finalised.

Privacy, publicity, and breach of privacy

On one level the case does no more than confirm that there is an expectation of privacy; and that where that expectation is disregarded by anyone exercising their competing freedom of expression, then damages may follow. That is relatively well-settled law (see eg Von Hannover v Germany (Appn No 59320/00) (2004) 40 EHRR 1; [2004] ECHR 294; Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457).

What Richards does is to pose the question for the press and for anyone else publicising information – such as family law bloggers who may be admitted into court from 1 October 2018 (see Transparency Project, Legal Bloggers – Pilot Announced) – where an expectation of privacy arises: how far does freedom to publish (for individuals and for the media) protect the publisher from a damages claim where privacy is overridden (eg because a child’s name can be identified even though a case is reported with parties anonymised). And for the media, how far does the public interest defence (HRA 1998 s 12(4)) protect them from such a claim? To what extent – just a thought… – should those who publish information (say) from a family court insure against a claim from a local authority, a parent, or a child whose privacy has been overridden by unwarranted publicity (eg in a blog, even in law reports)?

A child and most private lay individuals in children proceedings are entitled to privacy; that is to say they have an expectation of privacy. It that is breached, in relation to court proceedings, there may be a question of contempt proceedings (Administration of Justice Act 1960 s 12(1)). Separately, and whether there are court proceedings or not, the person who breaches their privacy may be sued in tort. As Mann J [2018] EWHC 1837 (Ch) commented:

“[259] … As against SYP as a public authority there is a direct complaint [by CR] against them under [HRA 1998]. As against the BBC there is the tort which has been fashioned out of the Act so as to give a remedy against non-public authorities….”

The claim is against anyone who publishes and thereby breaches a protected person’s privacy. The press have the public interest card to play (HRA 1998 s 12(4). The rest of us do not. “Jigsaw identification” in children proceedings, of a child or the child’s parents or other cares, surely makes the possibilities of breach relatively high.