Posted by: Erik Hovenkamp | 19th Jul, 2018

Don’t Talk about Him: Sir Cliff Richard OBE v. BBC

Post by Samuel Beswick.

Sir Cliff Richard is the latest celebrity to win substantial damages for invasion of privacy by a news organization in England. In the summer of 2014, the BBC broke the story that Sir Cliff was under Police investigation in relation to an alleged historic sex offence. It broadcast with “colour and sensationalism” [§55] the police search of his Berkshire home: dispatching reporters and a helicopter to the area, as well as to Sir Cliff’s other known residences in Europe. The singer was holidaying in Portugal with friends at the time. The Police dropped the investigation 22 months later. They brought no charges.

Sir Cliff sued the Police (who settled for £700,000 and a public apology) and the BBC. On July 18, the High Court of England and Wales found against the BBC and ordered payment of general, aggravated and special damages: Richard v. British Broadcasting Corporation [2018] EWHC 1837 (Ch).

Earlier this year my co-author and I made the argument that English privacy law is heading down a divergent path from other common law countries by embracing a framework that in practice favors privacy interests above conventional freedoms of speech and of the press. Mr Justice Mann’s judgment would appear to be a further illustration of our thesis. 

The ultimate balancing test

Sir Cliff claimed that “both the fact of the investigation and the search” were private matters and that the BBC should not have identified him in media reporting [§232]. Justice Mann approached the case in the manner now familiar to English privacy lawyers. The European Convention on Human Rights informs the private law action. The Court’s task was to balance Sir Cliff’s privacy rights (which flow from Article 8 ECHR) and the BBC’s rights to freedom of expression (assured by Article 10) [§227–§230]. The Court relied heavily on the guiding decision of the Grand Chamber of the European Court of Human Rights, Axel Springer AG v. Germany [2012] EMLR 15, which lays down criteria relevant to the balancing exercise.

Justice Mann accepted that while “[a]s a matter of principle neither [of the ECHR rights] has primacy,” the “starting point” was that a suspect has “a reasonable expectation of privacy in respect of an investigation” [§250–§251, §270]. Factors favoring Sir Cliff’s privacy interests included the trend of the legal authorities [§234–§238] and “[c]ertain extra-judicial pronouncements” [§239] toward protecting the identities of police suspects, as well as the public stigma attached to the fact of an investigation of serious allegations [§248], the Judge’s view that this was not an aspect of the celebrity plaintiff’s life as to which he would have lower expectations of privacy [§262], and the invasiveness of broadcasting Sir Cliff’s (vacant) home [§265].

For the BBC it was accepted that the story contributed to a debate of public interest [§281]. Sexual abuse of children is plainly a matter of serious public concern. The allegations arose at a time when notorious and historic pedophile rings involving British public figures and community leaders—and questions about the efficacy of prior police investigations—were being exposed and discussed in the media. But the Judge did not accept that the BBC’s decision to identify Sir Cliff was justified by his public status as an entertainer and a self-avowed Christian or by his prior conduct. To the contrary, it was averred that the plaintiff’s public status “emphasises the need for privacy in a case such as this” [§256]. His Honor criticized the BBC for coordinating its “scoop” with the police, as well as for the content, form and consequences of its reporting [§283–§314].

It is no surprise, then, that the Court struck the balance in favor of the plaintiff. What is remarkable is that Justice Mann held that even aside from the extravagant aspects of the BBC’s reporting, naming Sir Cliff as the subject of the police investigation itself seriously infringed his privacy rights [§318]:

“A lower key report of the search and investigation (for example, done merely by a measured reading of the relevant facts by a presenter in the studio) would, on my findings be a serious infringement, and would not be outweighed by the BBC’s rights of freedom of expression.”

Liability

In addition to general and aggravated damages of £210,000, the BBC is on the hook for special damages arising from the consequent reporting of other print and broadcast media, the harm caused by an obnoxious “Christians against Cliff” Facebook page that emerged, costs Sir Cliff incurred in dealing with a blackmail attempt and in obtaining advice on media presentations after the charges were dropped, and a lost advance on a book deal. The BBC will appeal, though the weight of precedent is against it.

Privacy tort law’s divergent paths

The impact of the police investigation and the public reporting of it was clearly devastating to Sir Cliff. The Court’s judgment provides vindication. But it remains problematic. It reveals the divergence in the English approach to these cases compared to other common law countries, which largely model their privacy torts on the Prosser/Restatement formulation. On this point, I have three brief observations.

First, there is a reason Sir Cliff did not bring a claim in defamation. The English law of defamation recognizes a defense of responsible journalism, a threshold of serious harm, and presumptions against injunctive relief. There are fewer obstacles to establishing liability for a privacy tort. The inclinations of other common law jurisdictions, by contrast, have tended to impose a similar, high burden on plaintiffs in privacy actions as in defamation actions where the freedom of speech or of the press are engaged. Comparative study shows that this difference is consequential.

Secondly, the case illustrates the inevitability of balancing personal privacy interests against general reporting freedoms. It also seems to raise the spectre of a double standard. The Court’s judgment suggests that the more serious the allegations, the more famous the celebrity, and the more extensive the interest and reporting, the more compelling will be the case for restraining the media. But the value of free speech is rarely appreciable in the individual case. It is in the aggregate—when restrictions on the press lead to blanket “no-go” areas and when court dockets begin to read “like alphabet soup”—that incursions into media reporting are revealed as problematic.

Finally, the High Court’s approach seems to be driven in significant part by hindsight. Would a similarly situated plaintiff’s claim to privacy in the facts of a police investigation and a lawful search, and an intended arrest, have been sustained had the allegations turned out to be true? The Judge dismissed concerns that the BBC would have been criticized for keeping quiet or that sanctioning the broadcaster would chill legitimate news reporting, saying “[t]here was no obligation on the BBC to report. Future criticism … does not matter” [§313]. But it is not difficult to envisage less well-resourced news editors erring against reporting criminal investigations in a manner that might weaken the public’s confidence in mainstream news and encourage speculation or recourse to less reputable sources.

In his book on comparative US–UK media law, Tim Crook asked whether with the expansion of English privacy law it was “at all inconceivable to predict that in another fifteen years visiting American journalists, lawyers and judges will be pondering the wide and regular phenomenon of the anonymous criminal?” For now, we can ponder at least the era of the anonymous suspect.

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