Last week the BBC announced that it would not be appealing the High Court’s finding in July that Sir Cliff Richard was entitled to damages of £210,000 for breach of his privacy by the BBC. The High Court decision has prompted much discussion on the state of the law in this area in England and Wales and whether amendment is required to protect media freedom in reporting on criminal investigations and the suspects involved. What impact, if any, does this decision have on Irish Privacy Law?
In 2014, the BBC ran a news story regarding a raid on Cliff Richard’s home. South Yorkshire Police (SYP) raided the singer’s home, due to an investigation regarding historic child sexual assault allegations. SYP tipped the BBC off about the impending raid. After being informed of the raid, the BBC used a helicopter to film it, and ran the story every quarter of an hour during the day. Richard had not been charged with any crime and the investigation was subsequently dropped.
Richard, in turn sued the SYP and the BBC. The claim focused on the breach of his right to privacy. The claim, like many privacy lawsuits before it, followed the same format; the plaintiff suing a media outlet while citing Article 8 of the European Convention of Human Rights (ECHR), while the defendant, uses Article 10 of the ECHR as the basis of their defence.
In the ECHR, Article 8 refers to the right to respect for private and family life, while Article 10refers to freedom of expression. In this case the English Courts found that the media had over stepped their mark. High Court judge Mr Justice Mann who presided over this case, stated that ‘’Public figures are not fair game for any invasion of privacy’’. Judge Mann stated that the BBC had overstepped the mark due to the ‘’excitement of its scoop’’. The Judge awarded damages of £210,000 to Richard (£190,000 in general damages and £20,000 in aggravated damages).
Breach of privacy cases often relate to the activities of the tabloid press. This case is different, given the fact that it involved a state broadcaster. Could the Irish Courts have come to a similar decision?
Irish Privacy Law v English Privacy Law
The English approach deals with the reasonable expectation of privacy as an initial threshold, which the plaintiff must satisfy to be able to invoke the protection of Article 8. Then, this is balanced against competing interests.
In the case of Campbell v Mirror Group Newspapers Ltd  UKHL 22, Lord Hope, in the House of Lords declared, that ‘the question is what a reasonable person of ordinary sensibilities would feel if she was placed in the same position as the claimant and faced with the same publicity’.
In another English case, John Terry (previously 'LNS') v Persons Unknown  EWHC 119, it was held that when determining the test the court should consider ‘the attributes of the claimant, the nature of the activity in which the claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.’
The test in Ireland appears to have been derived from the decision in Kennedy v Ireland, where President of the High Court Hamilton described the infringement as one which had been ‘carried out deliberately consciously and without justification’ by the relevant State actors.
In Herrity -v- Associated Newspapers [Ireland] Ltd,  IEHC 249, the High Court awarded €90,000 damages against Ireland on Sunday in respect of the newspaper’s articles about a woman’s relationship with a priest. The articles were based on information obtained by illegally tapping her phone and in turn, listening to her phone conversations.
In Hickey & anor -v- Sunday Newspapers Limited  IEHC 349 the Court indicated that activity in public places is less worthy of protection in comparison to more private places. In the Richard case, the inside of Richard’s home was broadcasted on live television. In cases such as Peck v UK (2003) 36 EHRR 41, The European Court of Human Rights, held that pictures and photographs may constitute a greater interference with a person’s privacy rather than the mere publication of information alone.
In the case of LK (a minor) -v- Independent Star Ltd Ors  IEHC 500, The High Court decided that the publication of the name and address of a man who raped and sexually assaulted two children, and which led to the children being identified, was not intended to lead to the identification of the victims; in the Court’s view this result was not foreseeable. Mr Justice John Hedigan stated that their rights to privacy were not breached and that they were not entitled to damages. In this case Justice Hedigan summarised that there were four pre-requisites to a successful breach of privacy action, which were as follows; the information must be private, and the violation must be deliberate, conscious and unjustified.
As we have seen in these decisions, privacy law has developed in this jurisdiction so that it is now clear that non-State entities can be sued for breach of privacy.
The Effect of the Cliff Richard Case
The judgment in the case of Richard v The BBC has already had an effect in legal proceedings in the UK. The legal team for a man in the UK who is under investigation by a national body for claims of inappropriate behaviour, say that if the media name their client, it would be a breach of privacy as per the judgement of Mr Justice Mann. This has seemingly stopped major newspapers in the UK from naming the man.
In an era where so much of one’s private life can be on public display, via social media platforms in particular, it is clear that there are still lines that, if crossed, can result in actionable breaches of privacy.
The High Court held that the BBC crossed one such line here. The scene broadcasted by the BBC could not have been witnessed by a member of the public. It is this part of the broadcast that the High Court deemed to be sensationalist. Due to this sensationalist conduct, the High Court deemed that the BBC’s conduct constituted a breach of Mr Richard’s privacy.
Given how the law in privacy has developed in Ireland, it is likely that the Irish Courts would have come to the same decision. That said, it is unlikely that the trickle of privacy cases in this jurisdiction is going to turn into a tsunami or that this case is going to have any substantive impact on Irish Privacy Law or the manner in which the media report on criminal investigations. Such reports have traditionally been fairly guarded and the Richard case appears to be quite fact specific in the manner in which the BBC obtained footage and reported on it. In addition this decision is not binding on the Irish courts; it is merely persuasive. The decision does however serve as a salutary reminder to the media that sensationalising stories can dilute the protection afforded to them by the law whether the legal issue is one of privacy or defamation