Much discussion has inevitably followed in the wake of the Cliff Richard judgment, often taking polarising viewpoints. Privacy advocates hailed the judgment as a further watershed for individuals' privacy rights whereas many in the press decried it as serious limitation on the ability to report on suspected criminality. The practical consequences of the judgment are in reality at neither end of this spectrum, but somewhere in between for the reasons explained as follows.
It is important to remember that misuse of private information claims are highly fact-specific. It is simply not the case that an individual who is investigated by the police (or other investigatory body or law enforcement agency) will have an 'automatic' right to prevent that information being published. The Richard judgment has not created a blanket ban on reporting individuals who are suspects in investigations. A two-stage test must be satisfied: does the claimant have a reasonable expectation of privacy in the circumstances, and if so, there must then be an "intense focus on the facts" to determine whether the claimant's right to privacy prevails over the publisher's right to freedom of expression (but where, as a starting point, neither right takes precedence over the other).
It is clear from the Richard judgment that a suspect, as a general principle, will have a reasonable expectation of privacy in relation to a police investigation. However, a suspect who wishes to prevent that information being published must demonstrate that he or she has a reasonable expectation of privacy in all the circumstances (as per the judgment in Murray v Express Newspapers). In the Richard case, Mr Justice Mann was of the view that the specific conduct of the BBC in the circumstances gave rise to a reasonable expectation of privacy, given the following factors:
- The nature of the investigation being historic sex abuse
- The intrusive nature of the broadcast
- The scale of the broadcast and the number of people to which the information was communicated
The intrusive nature of the BBC's conduct appears to have been an important factor for the judge; particularly given the BBC's use of a helicopter for footage of the raid on Sir Cliff's house which Mann J concluded added "sensationalism" to the story and where the BBC "went in for an invasion of Sir Cliff’s privacy rights in a big way". An examination of the level of intrusion into an individual's privacy is entirely consistent with prior case law, where the manner in which the private information is captured and conveyed can add to the level of intrusion and weigh more heavily in favour of a reasonable expectation of privacy. The adage that "a picture tells a thousand words" (as noted in Campbell v MGN, Theakston v MGN and in von Hannover v Germany) remains a key consideration.
Not every suspect in an investigation will necessarily have a reasonable expectation of privacy when all the circumstances are taken into account. For example, if an individual is involved in a very public offence (such as a brawl outside of a pub) and this becomes well-known publicly, it would be difficult to envisage that individual having a reasonable expectation of privacy if he or she is then investigated by the police.
Even if a suspect can establish a reasonable expectation of privacy, they must then establish that their right to privacy outweighs the publisher's right to freedom of expression. A claim for misuse of private information will fail if the degree of public interest in the private information sufficiently justifies its publication and consequent infringement of the claimant's privacy on the basis of proportionality. This determination should be highly fact-specific.
In completing this balancing exercise, the Court should have regard to the following criteria (as determined in Axel Springer v Germany):
- Whether the information contributes to a debate of general interest
- The notoriety of the person concerned and the subject matter of the report
- The prior conduct of the person concerned
- Method of obtaining the information and its veracity
- Content, form and consequences of the publication
In Richard, whilst there may have been public interest in police investigations of historic sex abuse, Mann J held that identifying the individual concerned, and in the manner it was done by the BBC, did not. But in different circumstances the facts can easily lean towards the publisher's right to freedom of expression outweighing a suspect's right to privacy. For example, a newspaper story about the fact that a Member of Parliament is being investigated for taking 'cash for questions' by a multinational company is more likely to be in the public interest on an objective basis.
The Richard judgment does undoubtedly expand the ambit of individuals' privacy rights vis-à-vis criminal investigations, but it is unlikely to set the dangerous precedent for journalism that many in the media have expressed. It is important to remember that an individual may only have a reasonable expectation of privacy at the investigation stage and if that individual is charged with a criminal offence, that expectation will be lost.