As has been much reported in the media, Sir Cliff Richard has recently won a landmark case with significant implications for individuals' rights to privacy on the one hand, and the right to freedom of expression on the other.
In this briefing, we consider the ways in which this judgment may affect the balancing exercise the court conducts when protecting an individual's right to privacy.
In 2014, in the aftermath of the Jimmy Saville scandal and the conviction of various other celebrities, South Yorkshire Police (SYP) raided Sir Cliff's home as part of an investigation into alleged historical sexual offences. Sir Cliff was never charged or arrested following the raid.
The BBC, by virtue of an anonymous source, had prior knowledge of the raid and covered it extensively. In particular, the coverage (described in the judgment as 'somewhat sensationalist') included a helicopter circling Sir Cliff's home and correspondents in Portugal seeking to interview Sir Cliff while he was abroad.
The BBC took the decision to name Sir Cliff in their reporting, something SYP declined to do, resulting in the story gaining significant coverage both in the UK and abroad, and claims being lodged against the BBC and SYP by Sir Cliff alleging that his rights to privacy had been infringed. SYP admitted liability and settled the claim, but the BBC took it to trial. SYP also brought contribution proceedings seeking a contribution from the BBC for the damages paid out by SYP.
The court was tasked with determining whether Sir Cliff's Article 8 right to respect for private and family life took precedence over the BBC's Article 10 right to free expression. It was also asked to rule on the claim under the Data Protection Act 1988.
In deciding that, in this instance, Sir Cliff's right to privacy trumped the BBC's right to freedom of expression, Mr Justice Mann highlighted three specific areas of concern:
- the information disclosed by the BBC (the name and the alleged crime);
- he manner in which it was disclosed (the 'sensationalist' element); and
- the effect on Sir Cliff
Damages of £210,000 were awarded to Sir Cliff, including £20,000 of aggravated damages as a result of the BBC subsequently submitting the broadcast for an award. This is a significant award of damages in an area where awards are typically much lower and rarely over six figures. A decision on special damages for consequential losses suffered by Sir Cliff will follow and could be substantial. The BBC has been ordered to pay the majority of the damages that are to be split between the BBC and SYP.
What this means...
While the BBC may still apply to the Court of Appeal to overturn the decision (despite Mr Justice Mann's refusal to grant permission to appeal), the ruling remains significant not just for media organisations but for privacy claims generally. In effect, the court has confirmed that even if information is already in the public domain and it is in the public interest that it be published, the way in which it is commented on and the effect that may have on an individual may expose the publisher to a substantial claim in damages. In this case, the BBC has recently confirmed it has agreed to pay Sir Cliff £850,000 in legal costs alone.
Whilst for Sir Cliff the judgment provides vindication rather than protection, it may serve as a useful weapon for future cases where an individual's privacy is threatened.