Be warned - you can be held liable for the defamatory comments of another!
Article 8 of the European Convention on Human Rights (the ECHR) gives everyone the right to respect for private and family life, home and correspondence. There are exceptions to this right, including where it can be contravened in accordance with law and where necessary in a democratic society. Article 8 must be balanced against Article 10 of the ECHR which gives everyone the right to freedom of expression; it also protects everyone’s right to communicate and express themselves in any medium – including through words, pictures and actions. This right is vital to a free press.
Cliff Richard successfully brought a case in privacy and under the Data Protection Act against the South Yorkshire Police (SYP) and the British Broadcasting Corporation (BBC) for publicly disclosing that he was under investigation for alleged sexual offences involving a minor. He was never arrested or charged. Nonetheless, the police search was covered, including by the BBC who streamed live footage from a helicopter, in various broadcasts in August 2014. Cliff Richard was awarded £210,000 by Mr Justice Mann in damages. This was formed of £190,000 in normal damages plus £20,000 in aggravated damages as a result of the nomination of the story by the BBC for the “Scoop of the Year Award” of the Royal Television Society.
Mr Justice Mann was clear that an individual who is under investigation by the police, but prior to an arrest, has a reasonable expectation of privacy regarding the facts of the investigation. Mr Justice Mann conceded that this is not a blanket ban and such a right can be outweighed by the right of the press to report on matters which are in the public interest.
The IPSO Editors Code of Practice (“the Code”), which is subscribed to by most mainstream newspapers, includes a list of matters which would be “in the public interest”, one of which is detecting or exposing crime, or the threat of crime, or serious impropriety. The Code prohibits the press from publishing inaccurate, misleading or distorted information but it does not mean that they cannot publish allegations. It also affords extra protection to children or victims of sexual assault.
Mr Justice Mann referred to the College Of Policing Guidelines (“the Guidelines”) in his judgment. The Guidelines set out that police will not name those arrested, or suspected of a crime, save in exceptional circumstances where there is a legitimate policing purpose to do so. According to these guidelines, a legitimate policing purpose may include circumstances such as a threat to life, the prevention or detection of crime, or where police have made a public warning about a wanted individual. Additionally, any decision to name an individual must be authorised by a chief officer.
It was thought that the Cliff Richard case would set a precedent with regard to those under police investigation, although Mr Justice Mann set out explicitly in his judgment that the public interest in identifying Cliff Richard did not exist but made specific reference to that being the position in this particular case, which would suggest decisions should continue to be made on a case by case basis.
On 23rd December 2018, the Mail on Sunday ran an article under the headline “Are these the morons who ruined Christmas?”. This was in relation to Paul Gait and Elaine Kirk who were arrested on Friday 21st December in relation to the drone sightings that affected 140,000 passengers at Gatwick Airport. Mr Gait and Ms Kirk were released without charge after 36 hours in custody. The couple featured heavily on the front pages which were in circulation the morning of their release. Mr Gait has since spoken out about the effect of being publicly identified – which included being signed off work and not leaving his house for two weeks. It is not yet known if they will take legal action although informed comment at the time suggested they could be entitled to substantial damages.
This case has led to an increase in the noise around further regulation of the press. Anna Soubry MP has, in response to the couple’s plight, spoken publicly of her support for “Cliff’s Law”. This is currently a private members bill, known as the Anonymity (Arrested Persons), and is awaiting Second Reading. Cliff’s Law would make it a criminal offence to name suspects before charge unless it is in the interests of justice. Soubry does not propose a blanket ban on reporting and accepts there will be exceptional cases, this is in line with Mr Justice Mann’s judgment.
In the summer of 2018, the Prime Minister seemingly disagreed with Cliff’s Law, suggesting that reporting of these allegations is a matter of careful judgement on the part of the police and the media and that on some occasions naming the individual would encourage other victims to come forward .
It also remains to be established whether the same rules apply to other types of investigations, e.g. employer and regulatory investigations. Whilst these are unlikely to end in custodial sentences, the consequences of publicity surrounding them can be significant, including loss of job, career, and they could potentially lead to a criminal investigation. For example, the press freely reported in November 2018 that Lord Lester had been accused of sexual harassment whilst the internal investigation was still on-going. Allegations of sexual harassment made against TV chef Dan Doherty from female kitchen staff were also widely reported at the end of January.
Becoming the subject of such investigation is undoubtedly extremely stressful. Concerns for career, family life and your reputation will be prevalent. The spotlight of media and public scrutiny makes dealing with such allegations even more scary and stressful still as demonstrated by the statements made by Cliff Richard, Mr Gait and many others following their very public experiences. The further developments relating to Cliff’s Law are yet to be seen and in the meantime, it remains questionable whether the Cliff Richard privacy judgment has really changed how the press report allegations.
If you have any questions about the issues raised in this blog, please contact a member of our team in confidence.
Our unrivalled experience in dealing with the highest profile and most sensitive cases involving allegations of sexual misconduct enables us to provide expert advice and support to individuals and organisations when they need it most. Our team of Reputation Management lawyers can quickly assess the situation and give strategic advice on courses of action to take in respect of privacy, defamation and data protection issues.
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