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25 July 2018

Privacy and police investigations: Sir Cliff Richard v BBC

On 18 July 2018 the High Court held that well-known entertainer, Sir Cliff Richard OBE, had privacy rights in respect of a police investigation for alleged sexual offences involving a minor and that the BBC infringed those rights without justification.  The case provides guidance on the key considerations for news broadcasters and producers when reporting about individuals who are the subject of police investigations. A wealth of caution should be exercised before publishing these types of stories.

Background

Sir Cliff was the subject of an investigation by the South Yorkshire Police (SYP) in relation to allegations of a historic sex offence involving a minor. The BBC got wind of this investigation from a confidential source and approached SYP about it. The BBC and SYP liaised about the investigation and search and it was hugely contested in Court as to what the contents of that liaison were. Leaving that aside however, ultimately the BBC gave extensive and prominent coverage to the raid of Sir Cliff’s home. Its coverage was described by Justice Mann as “somewhat sensationalist”, not least because it involved helicopter coverage and a ticker running across the screen with  many of its broadcasts touting the story as “breaking news”.  Sir Cliff brought his case against the SYP and the BBC, but the SYP settled with him earlier.

Privacy in police investigations & searches

Sir Cliff argued that he had a legitimate expectation of privacy in relation to both:  

  • the fact of the investigation; and
  • the fact of the search of his home.

The Court found that whether or not there was a reasonable expectation of privacy in a police investigation or search was a fact-sensitive question and was not capable of a universal answer one way or the other. As a general rule it was held that a suspect had an expectation of privacy in relation to a police investigation because the inevitable stigma associated with being investigated by the police. This was not an invariable right and may be displaced if, for example, there was an immediate risk to the public. Applying this analysis the Court held that Sir Cliff had a reasonable expectation of privacy in relation to both the information about the investigation and the search.

Mr Justice Mann rejected the BBC’s case that it was justified in reporting as it did so under its rights to freedom of expression. The consequences of this kind of publication for a high-profile person like Sir Cliff were very serious. The Courts view was that there was an unavoidable stigma associated with these kinds of revelations.  These considerations were heightened in Sir Cliff’s case because of the nature of the allegations (sexual offences involving a minor), particularly in the then climate.

In considering the distress caused to Sir Cliff and the damage to his health, dignity, reputation and status together with the wide publication of the story and the BBC’s “sensationalist” treatment of it, the Court awarded Sir Cliff £190,000 by way of general damages and £20,000 by way of aggravated damages.

Key lessons (for now?)

For broadcasters and production companies, this case serves to underline the key considerations when reporting about individuals that are the subject of police investigations or searches and the limits of the freedom of expression/public interest justification for restricting someone’s right to privacy. The starting point now must be that these news stories should not be reported about unless the circumstances displace the presumption of privacy.  News broadcasters should tread carefully in this space. The BBC has signalled that because of the principle at stake it is “looking at an appeal” so this may not be the end of this saga. 


This article was written by Claire Greaney. For more information, please contact Claire on +44 (0)20 7203 5273 or at claire.greaney@crsblaw.com.

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