Olivia O'Kane

Today’s ruling will have several major implications for future cases in this area of media law and it undoubtedly marks a shift toward enhanced privacy rights protection and also the potential for more inflated privacy damages awards.

Sir Cliff Richard has been awarded an unprecedented figure in privacy damages. Mr Justice Mann awarded £210,000 after finding that Sir Cliff’s privacy rights had been infringed when the BBC broadcast live a police raid of his home in Berkshire in August 2014.

The court held that Sir Cliff had a reasonable expectation of privacy in relation to the police investigation including the search of his home and further held that the BBC’s public interest defence failed.

In assessing what award to make the judge described the impact to Sir Cliff’s life and granted the unprecedented figure in respect of a very serious invasion of privacy rights which had a very adverse effect on an individual.

The BBC’s director has today stated that the BBC was sorry for the distress and understands the serious impact upon Sir Cliff. The BBC further acknowledged that with hindsight there were things it would do differently. The judge noted that everything broadcasted by the BBC was accurate.

The court held however, that even if there had been no broadcast of the search and the story had less prominence, the broadcast remained unlawful by the very naming of a person prior to being charged. The court held as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation.

The BBC considers that this creates a significant shift against press freedom. In its view it would mean that police investigations and searches of people’s homes could go unreported and unscrutinised. It puts decision making about naming persons under investigations in the hands of the police, who in turn might be nervous about being sued if they did name pre-charge or pre-conviction, and makes the public’s right to know about persons being investigated for serious crimes less important.

The public will never know about investigations unless that person is charged and or convicted. The BBC believe that this aspect of the judgment is incompatible with the general legal principle of press freedom to report in the public interest. For all of those reasons the BBC is appealing the decision because of the important principle of press freedom being at stake.

There are many instances of investigative journalism that have involved the media’s right to freedom of expression and reporting about matters of serious public interest at investigation stages prior to any charges or convictions, and some of those journalistic investigations ultimately led to prosecutions.

This judgment deals with the media’s right to freedom of expression in relation to significant matters of public interest journalism when reporting about criminal investigations. Many media lawyers and journalists will be reading the judgment with interest as they are concerned that the ruling could threaten the media’s ability to report on criminal investigations. Any court ruling that enhances privacy rights of persons subjected to criminal investigations prior to being charged engages the media’s right to freedom of expression and could have a chilling effect on public interest journalism.