In a recent decision, the High Court engaged in the exercise of balancing a broadcasting organisation’s right to freedom of expression under Article 10 of the European Convention of Human Rights (“ECHR”), against the right to privacy of the target of a police investigation under Article 8 of the ECHR. It was held that the subject of the investigation had a legitimate expectation of privacy in respect of the fact of the police investigation and that the Article 8 right outweighed the Article 10 right on this occasion: Sir Cliff Richard OBE v The British Broadcasting Corporation and The Chief Constable of South Yorkshire Police  EWHC 1837 (Ch).
The BBC has indicated in a recent press release that it may appeal the decision, stating that the High Court judgment “creates new case law and represents a dramatic shift against press freedom” which is not “compatible with liberty and press freedoms”. Hyperbole aside, this judgment has provided welcome clarification of certain aspects of the law of privacy.
First, the court held that “on the authorities, and as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation”. In making that ruling, the court paid heed to the reality of the social stigma which surrounds suspects in police investigations, acknowledging that the presumption of innocence is not perfectly understood and applied, and the public is not universally capable of keeping an open mind.
Secondly, the court held that reputational damage can be taken into account in assessing damages for privacy claims. Reputational damage is not, therefore, the sole province of defamation (as the BBC had argued).
As a matter of more general interest, in weighing the claimant’s Article 8 rights more heavily than the BBC’s Article 10 rights, the court accorded substantial weight to the questionable way in which he found the BBC had obtained its information. This will no doubt place the motives and methods of media organisations, and what may previously have been regarded by them as “good old fashioned journalism”, under potentially uncomfortable scrutiny.
Neil Blake, Christopher Cox and Angela Liu consider the decision further below. Continue reading