Cliff Richard’s court battle against the BBC shows there are no real winners in privacy litigation, writes Jennifer Agate
Few privacy cases go to trial; most advance little beyond an interim injunction, with the very fact of public proceedings being an incentive to settle early on. In this respect, Sir Cliff Richard’s victory against the BBC is a rare example of litigation wholly vindicating reputation.
The facts need little introduction. On 14 August 2014, the BBC broadcast the search of Sir Cliff Richard’s English home by South Yorkshire Police, choosing to name the singer as the subject of an investigation into historic sex abuse. The footage included helicopter footage of blue gloved police examining the singer’s home. The first broadcast alone was watched by 3.2 million viewers, and the story being subsequently repeated across the BBC and by other news organisations across the globe.
The police investigation lasted until June 2016, when it was announced that no charges would be brought. Sir Cliff was never arrested.
The subsequent civil proceedings against the BBC and South Yorkshire Police were brought under privacy law, but can be distinguished from other privacy cases because the most harmful potential information – the link to an investigation into historic sex abuse – had fallen away.
The first warning Sir Cliff had of the raid was when his business partner called him to say the police were at the apartment with a warrant, accompanied by the press. Two hours later, he was watching helicopter footage of the raid from Portugal.
Sir Cliff therefore had no opportunity to seek an injunction. However, Had he done so , he would no doubt have been advised that while there was a chance of obtaining an injunction, the fallout from an unsuccessful attempt to what would be described as ‘covering up’ the investigation, would likely have been worse than the original story. This is the enduring conundrum for individual seeking to protect their reputations in the face of reputational threat.
The repercussions of the case have already been hotly debated, supporters of the BBC expressing fears that the decision means the end of the media reporting on investigations. So what does this mean for individuals who, after this case, find themselves the subject of criminal investigations?
Privacy law allows individuals to protect their private information where they can show that they have a reasonable expectation of privacy which is not outweighed by the public interest in its disclosure. The judge made it clear that this case – as with every privacy law case – was fact sensitive. “Whether or not there is a reasonable expectation of privacy in a police investigation is a fact-sensitive question and is not capable of a universal answer one way or the other”.
The judgment separates out the public interest in reporting (a) that an unnamed celebrity is the subject of an investigation from (b) the public interest in identifying that individual. It does not follow, the court said, “that, because an investigation at a general level was a matter of public interest, the identity of the subject of the investigation also attracted that characterisation”.
Therefore individuals who want to keep their name out of reports will need to show that their identification adds nothing to the public interest in reporting that covers the facts of criminal investigations. They might therefore succeed, even where the investigation relates to a topic in which reports of police investigations are more obviously in the public interest, such as the investigation under Operation Yewtree, which formed the backdrop to the BBC report.
The judgment discloses that on learning that the BBC had the story of the arrest, one BBC employee expressed his delight by quoting lyrics from the singer’s classic song, ‘Congratulations’. A cliché it may be, but while Sir Cliff may be the clear victor in the proceedings, there is no winner.
Jennifer Agate is a Managing Associate at Foot Anstey