Sir Cliff Richard OBE v BBC [2018] EWHC 1837 (Ch)

Sir Cliff Richard successfully sued the BBC for misuse of private information after it broadcast, with helicopter footage, a police search of his home during a historic sex abuse investigation. Mann J held his Article 8 rights outweighed the BBC's Article 10 rights and awarded £210,000 general and aggravated damages.

Facts

In 2014 South Yorkshire Police (“SYP”) took over from the Metropolitan Police’s Operation Yewtree an investigation into a historic allegation of a sexual offence against a boy under 16, said to have occurred at a Billy Graham rally in Sheffield in the 1980s, in which the suspect was Sir Cliff Richard. A BBC reporter, Mr Daniel Johnson, was tipped off about the investigation by a confidential source (which the judge found was probably a police officer or someone associated with a police force). He contacted SYP’s head of corporate communications, Miss Carrie Goodwin, and subsequently met her and Supt Fenwick on 15 July 2014, at which meeting he was given details and promised advance notice of a planned search of Sir Cliff’s Sunningdale apartment.

The search took place on 14 August 2014. The BBC had crews in place before the police arrived, deployed a helicopter (without telling ITN, contrary to a sharing agreement) and, from about 1pm, broadcast the story extensively, naming Sir Cliff, including aerial footage of the estate, officers walking to the flat and “blue glove” shots looking into the penthouse while it was searched. SYP’s own statement to camera, given only to the BBC, did not name Sir Cliff. There were 44 BBC television broadcasts on 14 August and 15 on 15 August; the 1pm bulletin was seen by 3.2 million viewers and the main online article attracted over 5 million hits. The story was picked up worldwide. Sir Cliff, then in Portugal, learned of the coverage from others and watched the footage on television. He remained under investigation until June 2016, when the CPS confirmed no charges would be brought.

Sir Cliff sued both the BBC and SYP for misuse of private information and under the Data Protection Act 1998. SYP settled in May 2017, admitting liability, apologising and paying £400,000 damages plus costs. The BBC contested liability. There were also contribution proceedings between the BBC and SYP.

The principal factual dispute

The central factual issue was why SYP co-operated with the BBC. The BBC’s case was that SYP volunteered the information, wanting publicity for the force. SYP’s (and largely Sir Cliff’s) case was that Mr Johnson had approached with considerable detail (including that his source was Operation Yewtree), indicated he was ready to publish, and that SYP felt compelled to co-operate to prevent premature publication prejudicing the investigation.

Issues

• Whether Sir Cliff had a reasonable expectation of privacy in relation to the fact of the police investigation and the search of his home, both as against SYP and as against the BBC.
• If so, whether the BBC’s Article 10 freedom of expression rights outweighed those Article 8 rights on the balancing exercise.
• If there was an infringement, what general and aggravated damages should be awarded, and in particular whether damages in a privacy claim may include compensation for damage to reputation.
• Whether certain sample heads of special damage were caused, in fact and in law, by the BBC’s wrongdoing.
• What contribution, if any, was payable as between the BBC and SYP, and whether the BBC’s Article 10 rights precluded any contribution claim against it.

The judge declined to determine the Data Protection Act claim, holding it added nothing to the privacy claim and that determining it was neither necessary nor proportionate.

Arguments

For Sir Cliff (Mr Rushbrooke QC)

That he had a reasonable expectation of privacy in both the investigation and the search, as against police and media alike; that the BBC’s public interest justification did not extend to naming him; that the coverage was sensationalist, including intrusive helicopter footage; that the “right of reply” afforded was inadequate; and that damages should reflect the profound and prolonged effect on his life, with aggravated damages for, among other things, the BBC’s submission of the broadcast for a Royal Television Society “Scoop of the Year” award.

For the BBC (Mr Millar QC)

By final submissions the BBC conceded that, prima facie and as against a police force, a suspect has a reasonable expectation of privacy in the fact of an investigation, but argued that the position required fresh consideration once information reached a journalist, and changed again once the investigation reached the stage of a court-authorised search. It relied on Axel Springer AG v Germany criteria, contending there was a strong public interest in reporting police investigations into historic child sexual abuse by public figures; that Sir Cliff’s public status and publicly professed Christianity diminished his privacy expectations; that damages for reputational harm were the exclusive province of defamation; and that the claim raised issues of “great, arguably of constitutional, importance for the freedom of the press”. On contribution, the BBC argued that its Article 10 rights meant SYP (a public authority which could not itself claim Article 10 rights) could not obtain contribution from it, and that the BBC was in effect entitled to an indemnity.

For SYP (Mr Beer QC)

That Mr Johnson had pressured SYP into co-operating; that the BBC was the more potent cause of the damage; and that a 20/80 SYP/BBC apportionment was appropriate, with SYP not liable for any aggravated element.

Judgment

Findings of fact

Mann J preferred the evidence of Miss Goodwin, Supt Fenwick and Mr Crompton to that of Mr Johnson. He found Mr Johnson to have told Miss Goodwin more than that Sir Cliff was “on their radar”, including a reference to Operation Yewtree, and that at the meeting he let it be known that he had a story he could publish and encouraged the impression that he would or might do so. SYP did not volunteer the information out of a desire for publicity; they offered confirmation and details of the search to buy him off.

The judge firmly rejected the BBC’s suggestion that Miss Goodwin’s and Supt Fenwick’s notes were later fabrications, noting that SYP’s attribution of the leak to the Metropolitan Police pre-dated the alleged genesis of any conspiracy, and observing that the two conveniently blank half-pages in the notebooks “would have been a very happy accident”. He relied heavily on contemporaneous internal BBC emails as inconsistent with the BBC’s case, notably Mr Gary Smith’s email of 16 August 2014 (“and Dan doesn’t entirely deny this”) and Mr Munro’s handover email of 17 August. Several BBC witnesses were criticised: Mr Gary Smith was “unduly defensive, and to a degree evasive”, and of Mr Johnson the judge said he was “capable of letting his enthusiasm for his story get the better of his complete regard for truth on occasions”. Ms Unsworth was found honest but the judge rejected her evidence that she did not expect a response from Mr Hall, finding the decision to proceed “was driven, as so much in this case, by the need to preserve the scoop”.

Reasonable expectation of privacy

Applying Murray v Express Newspapers and In re JR38, and considering ERY, ZXC v Bloomberg and PNM, together with the Leveson Report, College of Policing guidance and Sir Richard Henriques’ review, the judge held:

“It seems to me 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, and I so rule.”

He emphasised this was a starting point, not an invariable rule, since the question is fact-sensitive and the expectation may be displaced (for example by legitimate operational reasons). He rejected the argument that a search under warrant of itself destroys the expectation, and rejected the contention that the expectation changes merely because the information passes into media hands: “the quality of the information as being private cannot, as a matter of principle, be affected by the nature of the recipient from time to time.” Sir Cliff’s public status and professed Christianity did not deprive him of that expectation.

He also found that the filming into the flat infringed Sir Cliff’s privacy rights, though of limited weight in context, and rejected the (unpleaded) trespass claim, since Sir Cliff appeared to hold a lease with no relevant airspace rights.

The balancing exercise

Applying In re S and the Axel Springer criteria, the judge accepted a significant public interest in reporting that police were investigating historic sexual abuse, including by public figures, but drew a critical distinction as to identification: “Knowing that Sir Cliff was under investigation might be of interest to the gossip-mongers, but it does not contribute materially to the genuine public interest in the existence of police investigations in this area.” He found the method of obtaining the information weakened the BBC’s position; that the “right of reply” afforded was, in the circumstances, insufficient; and that the coverage was presented “with a significant degree of breathless sensationalism”, the helicopter footage adding drama rather than useful information. He concluded: “In short, and insofar as it is relevant under this head, the BBC went in for an invasion of Sir Cliff’s privacy rights in a big way.”

He held Sir Cliff’s Article 8 rights were not outweighed by the BBC’s Article 10 rights, adding that even a low-key studio report of the search and investigation would, on his findings, have been a serious infringement not outweighed by Article 10. He rejected Mr Millar’s constitutional argument, noting that any change in the position of the press flowed from the Human Rights Act 1998 rather than any court-created principle.

Damages

The BBC did not argue that the story would have emerged anyway, and accepted responsibility for the consequences including republication elsewhere. The judge rejected the submission that reputational damage is recoverable only in defamation, relying on Khuja v Times Newspapers, where Lord Sumption stated that although the ambit of privacy is wider than defamation, “it provides an alternative means of protecting reputation which is available even when the matters published are true”. He distinguished Lonrho v Fayed (No 5), Gulati and Cooper v Turrell as not supporting the BBC’s implication.

General damages were assessed at £190,000, taking into account distress, damage to health, loss of control over private information, damage to dignity, status and reputation, the extremely serious nature of the information, the scope of publication and the sensationalist presentation. He regarded the case as significantly more serious than Mosley. He held that an award at this level would not have an impermissible chilling effect: “It is not an excessive figure; there is no punitive element; it is a genuine compensatory figure”.

Of the aggravated damages heads advanced, only one succeeded: the submission of the broadcast for the Royal Television Society “Scoop of the Year” award and refusal to withdraw it, for which £20,000 was awarded. The judge rejected aggravation based on flagrancy, failure to apologise, the manner of defending the litigation, or the cross-examination of Sir Cliff, which he found legitimate and not hostile in tone. Total general and aggravated damages: £210,000.

Special damages (causation only)

The judge found factual and legal causation established for the costs of dealing with the “Christians against Cliff” Facebook page, the print media (Mirror Group) and broadcast media (Sky) threatened stories, an attempted blackmail, advice on media interviews after the decision not to charge, and the lost book advance for the shelved revised autobiography (finding, on somewhat thin evidence, that but for the publicity the investigation would have concluded in time for publication). He held these fell within the scope of the tort, drawing on the remoteness reasoning in Douglas v Hello! (No 3). Two heads failed: the Home Affairs Select Committee inquiry and the US immigration matter, neither being foreseeable nor within the interests protected by the tort.

Contribution

The judge rejected the BBC’s Article 10 argument, holding first that the contribution claim does not itself interfere with freedom of expression, since “a successful contribution claim pre-supposes that there is already a limit to the freedom of expression right, set by Sir Cliff’s claim”; and secondly that rights under the Civil Liability (Contribution) Act 1978 fall within “the protection of the… rights of others” in Article 10(2), and that a public authority may be an “other”. He said he would find it worrying if the position were otherwise: “I cannot understand why the non-state perpetrator should get off financially scot-free.”

Applying Downs v Chappell and Re-Source America, he apportioned responsibility 65% BBC / 35% SYP, the BBC being the more potent cause: it alone decided to publish, to name Sir Cliff, and to use the helicopter. SYP is not liable for the £20,000 aggravated element, and £5,000 was attributed to damage caused by SYP’s disclosure alone.

Implications

This is a first-instance decision of the High Court, and its most significant statement of principle is the ruling that, as a general starting point, a suspect has a reasonable expectation of privacy in relation to a police investigation. Importantly, the judge expressly declined to state an invariable rule: the question remains fact-sensitive and the expectation can be displaced, for instance by legitimate operational reasons (as envisaged by Sir Brian Leveson) or where the suspect’s own conduct alters the position. The judgment did not decide whether the same applies to an arrest, the judge leaving that open.

Two subsidiary propositions are of practical importance. First, private information does not lose its private quality merely because it passes from a police force into the hands of a journalist; the media’s competing interest is addressed at the Article 10 balancing stage, not by re-characterising the information. Secondly, the existence of a search warrant, and the execution of a search, does not of itself extinguish the expectation of privacy, even though execution may as a practical matter compromise it.

The decision also confirms, by reference to Khuja, that damages for misuse of private information may include compensation for damage to reputation, notwithstanding that the information published is true. Practitioners should note that this rejects the argument that reputational harm is the exclusive preserve of defamation, and it opens the way to consequential loss claims (such as the lost book advance) predicated on reputational damage, subject always to foreseeability and scope-of-duty analysis.

For broadcasters and journalists, the reasoning is instructive on several practical points: identification of the suspect requires its own public interest justification distinct from the interest in reporting that investigations are taking place; the manner of presentation matters, as sensationalism (here, helicopter footage) increases the seriousness of the invasion; the method of obtaining the information is relevant to the balance; and the adequacy of any “right of reply” will be assessed on the facts, particularly where the subject is abroad. The judge also made clear that fear of future criticism for not reporting is not, of itself, a good reason to report.

For police forces and other public authorities, the decision underlines the risks of media co-operation in relation to suspects, and confirms that a public authority which has settled a claim may nevertheless obtain contribution from a co-wrongdoing media organisation; Article 10 does not confer immunity from contribution.

Certain limits should be kept in mind. The Data Protection Act claim was not determined. The trespass claim failed and was in any event unpleaded. The question of what advance notice must be given to enable a subject to seek an injunction was expressly left undecided for want of argument. Quantum of special damages was not determined, only causation in respect of sample heads. Finally, the judge accepted the case was “capable of having a significant impact on press reporting”, but rejected the submission that it raised constitutional questions requiring legislative rather than judicial resolution, observing that the balancing exercise is one conducted under and pursuant to the Human Rights Act 1998.

Verdict: The claim succeeded. Mann J held that the BBC was liable for infringing Sir Cliff Richard’s privacy rights by broadcasting the fact that he was the subject of a police investigation for historic sexual abuse and that his property was being searched. The BBC was ordered to pay general damages of £190,000 plus £20,000 aggravated damages (for submitting the broadcast for a Royal Television Society award and refusing to withdraw it), totalling £210,000. Legal causation was established in respect of certain sample special damages claims (the Facebook page, print and broadcast media interventions, the attempted blackmail, post-decision media advice and the lost book advance), but not in respect of the Home Affairs Select Committee matter or the US immigration matter; quantum of special damages was left to a further inquiry. On the contribution claims, the BBC’s argument that Article 10 precluded contribution and entitled it to an indemnity from South Yorkshire Police was rejected; the damages for which both defendants were jointly liable were apportioned 65% to the BBC and 35% to SYP, excluding the £20,000 aggravated element (BBC alone) and £5,000 attributable to SYP alone. The Data Protection Act 1998 claim was not determined as it added nothing to the privacy claim.

Source: Sir Cliff Richard OBE v BBC [2018] EWHC 1837 (Ch)