Cliff Richard v BBC – Part II – Media speech and publication in the public interest

The record man said
‘Don’t let it go to your head, I’m gonna make you a star’
… So mama please don’t worry about me, I’m nearly famous now.

Sir Cliff Richard OBE in Greenwich 2017 (via Flickr) (element)1. Introduction
The words above are in the first verse of “I’m Nearly Famous”, the title track of an album released in 1976 by Sir Cliff Richard [Sir Cliff], pictured left rocking Greenwich, UK, in 2017. Six weeks earlier, the South Yorkshire Police [SYP] had admitted that their tip off to the BBC that he was being investigated in respect of allegations of historic sex abuse infringed his privacy (see, eg, Richard v BBC [2017] EWHC 1648 (Ch) (26 May 2017)). On foot of that tip off, the British Broadcasting Corporation [the BBC] gave those allegations and the search of Sir Cliff’s property in Sunningdale, Berkshire prominent and extensive television coverage. Last week, in Richard v BBC [2018] EWHC 1837 (Ch) (18 July 2018) Mann J held that that the BBC’s broadcasts also infringed Sir Cliff’s privacy, and awarded him £210,000 damages. In a previous post, I have considered Mann J’s analysis that Sir Cliff had a reasonable expectation of privacy under Article 8 of the European Convention on Human Rights [the ECHR] in respect of the police investigation. In this post, I will consider whether the BBC nevertheless were entitled under Article 10 ECHR to broadcast the allegations and the search. In a future post, I will consider the quantum of damages awarded.

2. Article 10 ECHR and the BBC’s Freedom of Expression
The concept of media freedom is at the heart of modern democracy (see, eg, András Koltay “The concept of media freedom today: new media, new editors and the traditional approach of the law” (2015) 7(1) Journal of Media Law 36). It is a significant point of difference between Sir Cliff’s case against the SYP and his case against the BBC. Although Mann J held that Sir Cliff’s prima facie reasonable expectation of privacy arose against both the SYP and the BBC, the difference between them arose at the subsequent stage of balancing Sir Cliff’s reasonable expectation of privacy under Article 8 ECHR with the BBC’s freedom of expression under Article 10 ECHR. Mann J undertook that balance pursuant to the speech of Lord Steyn in In re S (A Child) [2005] 1 AC 593, [2004] UKHL 47 (28 October 2004) [17], which he interpreted ([2018] EWHC 1837 (Ch) [276]) in the light of the judgment of the Grand Chamber of the European Court of Human Rights in Axel Springer AG v Germany 39954/08, (2012) 55 EHRR 6, [2012] ECHR 227 (7 February 2012) [89] (see, generally, Rebecca Moosavian “Deconstructing ‘Public Interest’ in the Article 8 vs Article 10 Balancing Exercise” (2014) 6(2) Journal of Media Law 234) He held that factors to be taken into account in balancing Article 8 and Article 10 include (a) the contribution of the publication to a debate of general interest, (b) how well-known is the person concerned and what is the subject of the report, (c) the prior conduct of the person concerned, (d) the method of obtaining the information and its veracity, (e) the content, form and consequences of the publication, and (f) the severity of any sanction imposed.

Applying each criterion in turn, Mann J held (a) knowing that Sir Cliff was under investigation might have been of interest to the gossip-mongers, but it did not contribute materially to the genuine public interest in the existence of police investigations in this area ([2018] EWHC 1837 (Ch) [282]); (b) “public figures are not fair game for any invasion of privacy” (ibid, [287]); and (c) Sir Cliff’s public position and stated views do not diminish his right to privacy in respect of allegations of the kind which underpin the BBC’s disclosures (ibid, emphasis in original); (d) the information was accurate (ibid, [289]) but the BBC’s methods of obtaining it were questionable, though this weighed only very lightly in Sir Cliff’s favour (ibid, [292], [296]); and (e) the broadcasts were presented with “a significant degree of breathless sensationalism” which “went in for an invasion of Sir Cliff’s privacy rights in a big way” (ibid, [300], [301]). He left the question of the chilling of effect of any sanction to the discussion of quantum, which I will address in a future post. He also had regard to the BBC’s editorial guidelines (as a “relevant privacy code” within the meaning of section 12(4)(b) of the Human Rights Act 1988).

Taking all these factors into account, Mann J came “to the clear conclusion that Sir Cliff’s privacy rights were not outweighed by the BBC’s rights to freedom of expression” (ibid, [315]). First, the consequences of a disclosure for a person such as Sir Cliff were very serious (ibid, [316]); and these consequences called for an equally serious justification for publication (ibid). Although Mann J acknowledged “a very significant public interest in the fact of police investigations into historic sex abuse, including the fact that those investigations are pursued against those in public life” (ibid, [317]), it was not present on the facts of this case; and even it were, it was heavily outweighed by the seriousness of the invasion (ibid). Moreover, Mann J held that the sensationalist style of reporting weighed strongly against the interests of freedom of expression in this case (ibid, [318]). Finally, so far as the other factors listed above have weight, Mann J considered that “they add it to Sir Cliff’s side of the scales” (ibid, [319]).

Plainly, Mann J disapproved of the BBC’s methods of obtaining the information from SYP about the investigation into Sir Cliff, of the decisions relating to the broadcasts, and of the sensational tone of the broadcasts themselves. This all weighed in Sir Cliff’s favour and against the BBC’s. It was an extraordinarily censorious approach to take. As Lord Nicholls put it in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, [1999] UKHL 45 (28 October 1999), considering publication in the public interest – albeit in the context of a defamation rather than privacy claim:

… it should always be remembered that journalists act without the benefit of the clear light of hindsight. Matters which are obvious in retrospect may have been far from clear in the heat of the moment. Above all, the court should have particular regard to the importance of freedom of expression. The press discharges vital functions as a bloodhound as well as a watchdog. The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion. Any lingering doubts should be resolved in favour of publication.

In Axel Springer, upon which Mann J relied, the ECHR held that a prohibition on reporting the arrest and conviction of a famous actor on drugs charges constituted a violation of Article 10 ECHR. Moreover, the ECHR has held that undercover and underhand methods do not bring the media outside the protections of Article 10 (eg, Fressoz and Roire v France 29183/95, (2001) 31 EHRR 2, [1999] ECHR 1 (21 January 1999) (leaked tax forms); Bladet Tromsø and Stensaas v Norway 21980/93, (2000) 29 EHRR 125, [1999] ECHR 29 (20 May 1999) (leaked report); Radio Twist as v Slovakia 62202/00, [2006] ECHR 1129 (19 December 2006) (surreptitious recordings); von Hannover v Germany (No 2) 40660/08 & 60641/08, (2012) 55 EHRR 15, [2012] ECHR 228 (7 February 2012) (surreptitious photographs); Haldimann v Switzerland 1830/09, [2015] ECHR 215 (24 February 2015) (hidden cameras)). The Irish courts have come to similar conclusions (Cogley v RTÉ [2005] 4 IR 79, [2005] IEHC 180 (8 June 2005) (hidden camera); Mahon v Post Publications [2007] 3 IR 338, [2007] IESC 15 (29 March 2007) (leaked report)).

Something more than prudish disapprobation of underhand methods is necessary to displace the protections afforded to the media by Article 10. In Stankiewicz v Poland 48723/07, [2014] ECHR 1061 (14 October 2014) [63]-[64] and Maciejewski v Poland 34447/05, [2015] ECHR 17 (13 January 2015) [69]-[70], the ECHR cautioned:

If the national courts apply an overly rigorous approach to the assessment of journalists’ professional conduct, the latter could be unduly deterred from discharging their function of keeping the public informed. The courts must therefore take into account the likely impact of their rulings not only on the individual cases before them but also on the media in general …

An additional factor … is the vital role of “public watchdog” which the press performs in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest … The Court must apply the most careful scrutiny when the sanctions imposed by a national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern …

3. The public interest
Not only did Mann J disapprove of the BBC’s tactics, he held that they had little public interest justification for what he considered to be their sensationalist broadcasts. Notwithstanding the stress the ECHR in cases like von Hannover v Germany (No 2) [108](a) and Axel Springer [90] places on the contribution that broadcasts in question can make to to a debate of general interest, Mann J held that the significant public interest in the fact of police investigations into historic sex abuse, and in identifying persons being investigated, did not exist on the facts of this case ([2018] EWHC 1837 (Ch) [317]). But he did not explain why it did not exist on the facts. He added that, if he were wrong about that, then that public interest is “not very weighty and is heavily outweighed by the seriousness of the invasion” (ibid), but again he did not explain why it was not very weighty. On the other hand, the ECHR sees the public interest in the investigation of crime as very strong indeed. For example, in Du Roy and Malaurie v France 34000/96, [2000] ECHR 445 (3 October 2000) [34]-[35] the ECHR held that, while journalists reporting on criminal proceedings currently taking place must respect the accused’s right to be presumed innocent and must not overstep the bounds imposed in the interests of the proper administration of justice, a general and absolute ban on publication of any information concerning criminal proceedings instigated by an individual, infringed Article 10. In Dupuis v France 1914/02, (2008) 47 EHRR 52, [2007] ECHR 5563 (2 November 2007) [46] the ECHR held that convictions of journalists for reproducing material from a pending criminal investigation in a book infringed Article 10:

… it is necessary to take the greatest care in assessing the need, in a democratic society, to punish journalists for using information obtained through a breach of the secrecy of an investigation or a breach of professional confidence when those journalists are contributing to a public debate of such importance and are thereby playing their role as “watchdogs” of democracy. Article 10 protects the right of journalists to divulge information on issues of public interest provided that they are acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism …

In Eerikäinen v Finland 3514/02, [2009] ECHR 255 (10 February 2009) [68] the ECHR held that an award of damages against a magazine for identifying a criminal defendant infringed Article 10:

… the general subject matter which was at the heart of the article concerned – namely, the abuse of public funds – was a matter of legitimate public interest, having regard in particular to the considerable scale of the abuse. From the point of view of the general public’s right to receive information about matters of public interest, and thus from the standpoint of the press, there were justified grounds supporting the need to encourage public discussion of the matter in general.

Of course, there are limits to the public interest in publication. For example, in Mosley v UK 48009/08, (2011) 53 EHRR 30, [2011] ECHR 774 (10 May 2011) [114] the ECHR observed that “making tawdry allegations about an individual’s private life … [in] press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life … does not attract the robust protection of Article 10 afforded to the press. As a consequence, in such cases, freedom of expression requires a more narrow interpretation …” (see, generally, Paul Wragg ‘A Freedom to Criticise? Evaluating the Public Interest in Celebrity Gossip after Mosley and Terry(2010) 2(2) Journal of Media Law 295). Again, in Couderc and Hachette Filipacchi Associés v France 40454/07, [2015] ECHR 992 (10 November 2015) [100], the ECHR observed that “although the public has a right to be informed, and this is an essential right in a democratic society which, in certain special circumstances, can even extend to aspects of the private life of public figures, articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person’s private life, however well-known that person might be, cannot be deemed to contribute to any debate of general interest to society” (see Leto Cariolou “The developing law of privacy and the limits to the public interest defence: the Grand Chamber judgment in Couderc and Hachette Filipacchi Associés v France(2016) 8(2) Journal of Media Law 138). But in neither case was there any question of a criminal investigation. Moreover, in Mosley the ECHR found that the publication of private information without prior notification without did not infringe the applicant’s Article 8 right to privacy; and in Couderc, applying the Axel Springer criteria that Mann J applied in Richard, the ECHR held that an award of damages in respect of the publication of an article and photographs revealing the existence of a Prince’s secret child infringed the applicants’ Article 10 right to freedom of expression.

It is clear, therefore, that there is a great deal to be said for the public interest in favour of publication of information concerning criminal investigations. For the ECHR, it is an important aspect of the watchdog role of the press that is a central concern of Article 10. And the ECHR’s reaffirmations of the watchdog role of the press have been adopted by the House of Lords and the UK Supreme Court (see, eg, Observer and Guardian v UK 13585/88, (1992) 14 EHRR 153, [1991] ECHR 49 (26 November 1991) [59] applied by the House of Lords in Campbell v MGN Ltd [2004] AC 457, [2004] UKHL 22 (6 May 2004) [107]-[108] (Lord Hope); Goodwin v UK 17488/90, (1996) 22 EHRR 123, [1996] ECHR 16 (27 March 1996) [43] applied by the House of Lords in Ashworth Security Hospital v MGN Ltd [2002] 1 WLR 2033, [2002] UKHL 29 (27 June 2002) [38] (Lord Woolf); see also Flood v Times Newspapers Ltd [2012] 2 AC 273, [2012] UKSC 11 (21 March 2012)). Mann J paid this concern very short shrift indeed (see [2018] EWHC 1837 (Ch) [274]).

4. Conclusion
Because of his disapproval of the BBC’s methods, Mann J gave short shrift to the public interest in their broadcasts. He may even have taken an overly rigorous approach to the assessment of the BBC’s conduct, and he may therefore have paid insufficient attention to the public interest as a consequence. This is not to say that the BBC’s Article 10 right to freedom of expression should not have been outweighed by Sir Cliff’s Article 8 ECHR reasonable expectation of privacy. Rather, it is to say that any such conclusion should have been arrived at, not on the basis of a disapproval of the BBC’s methods, but after an appropriate assessment of the public interest in their broadcast. [Update] The BBC considered whether to take an appeal, and sought leave. That application was rejected by Mann J[end update]. There is certainly scope for an appeal on this issue, , to confirm or reject Mann J’s approach to the public interest, and – either way – thereby bring bring clarity to the law.