12 April 2018 | Comment | Article by Tracey Singlehurst-Ward
Sir Cliff Richard is commencing a High Court trial against the BBC, alleging infringement of his right to privacy pursuant to Article 8 of the Human Rights Act. Sir Cliff Richard was subjected to police raids upon his property relating to child abuse allegations in one of the most public scenarios possible. It was broadcast across the BBC’s network via television, published online and in the printed press. He was questioned but never arrested.
Having obtained a Magistrates’ order to carry out searches, South Yorkshire Police conducted those searches under the watch of BBC journalists and helicopters filming the entire expedition. Sir Cliff Richard subsequently brought claims against both South Yorkshire Police and the BBC. South Yorkshire Police settled for an undisclosed sum, leaving the BBC defending its position in court.
The question for the court will be whether the BBC infringed Sir Cliff Richard’s right to privacy in accordance with Article 8 of the Human Rights Act, which guarantees individuals the right to respect for their private family life. We all wish to be able to live our private lives as exactly that – with a degree of protection from others intruding into private affairs. However, that right is not absolute and, in certain circumstances, must be balanced against rights of others guaranteed by law. This includes freedom of expression under Article 10 and the reporting of issues in cases where there is overriding public interest in the publication of information that might otherwise be considered private.
The question is unfortunately not simple and the law in England and Wales currently teeters on the edge of trying to define where the dividing line is. Sir Cliff Richard alleges that in this instance he had a reasonable expectation of privacy and the BBC overstepped the mark. He was away on holiday at the time the press coverage broke, which featured heavily across the BBC’s platforms and consequently in the widespread mainstream media. He argues that in circumstances where he had not even been arrested, this coverage was disproportionate and went far beyond any public interest. It was, some might say, sensationalist opportunism by a journalist who ensured the BBC was ready to take advantage of a ‘sensational’ story.
The BBC, will say that there was no reasonable expectation of privacy for Sir Cliff in this case. A Magistrates’ order to search his property had already been made as a matter of public record. He is a celebrity with a high profile who was at the time under investigation for allegations of serious potential criminal offenses involving child abuse. They say, it is understood, that it is proper that the public understand the key elements of police investigations into matters of this nature.
The case is expected to last two weeks and will be watched by lawyers, the media and international territories with interest. The law in this area of protection of privacy is not codified in detailed legislation but rather has been set by our judges in case law over the past two decades. The court will need to consider not only the principle of whether coverage was appropriate at all, but whether the BBC’s particular actions were proportionate and tipped the balance. The tug of war may produce a significant shift in privacy law. If Sir Cliff Richard wins, it could change the manner of reporting by mainstream media in future of police investigations and, arguably, “chill” free speech. Will the press be free to report upon investigations of any kind, or prohibited from doing so until there is an actual arrest or other balancing factor? On the other hand there can be no doubt that Sir Cliff Richard was subjected to an ordeal involving a bombardment of press coverage, delving deep into his private life, filming his home and speculating upon an offence for which he was never even arrested, let alone convicted.
It is anticipated that judgement will be reserved and delivered at some point in the future. Whichever way this case goes, it will be welcomed by those looking for some clarification on the rules and permissible acts.