Thursday, 19 July 2018

Sir Cliff Richard's expectation of privacy

I hope that the law on privacy is drifting away from its origins in the law on breach of confidence, if only for the selfish reason that I don't enjoy trying to lecture on or write about privacy as if it were part of the intellectual property world. Too often it seems to be concerned with little-known celebrities (spot the oxymoron) seeking to cover up their failings. But the chances of it appearing in exam papers just got a lot bigger than they already were.

Richard v The British Broadcasting Corporation (BBC) & Anor [2018] EWHC 1837 (Ch) (18 July 2018), a case which involved a genuine celebrity and a grievance that everyone should be able to acknowledge, suggests to me that the right to privacy is diverging from the law on breach of confidence, and I hope it will work out well for both areas of law. The claim was brought on the basis of Article 8 of the European Convention on Human Rights and also invoked the Data Protection Act 1998. Article 8 of course has to be balanced against Article 10, freedom of expression. So the questions for the court were, did Sir Cliff have a reasonable expectation of privacy in respect of the events reported, and was there a public interest in publishing the facts such that the BBC's Article 10 rights would prevail?

It's hard to imagine a more egregious (yes, that's my word of the day) invasion of one's privacy than to have the One O'clock News showing aerial footage of police officers swarming all over your house. But that's not what the court had to consider: only if Sir Cliff had a reasonable expectation of privacy would that have mattered. Mann J held that he did indeed have such an expectation, so he went on to balance the BBC's rights against that. The judgment contains a lengthy review of the various factors to be taken into account, but concludes that Sir Cliff's rights were, in effect, stronger than the BBC's. My reading of the judgment is that a highly persuasive part of this was the egregious nature of the breach. Some invasions of privacy can be regarded as minor, no doubt, but this was not one of them.

The judgment contains a long section devoted to the application of the rules about damages, and also a lot about contributions between the defendants. Life is not too short, but it is too full, to read all that at the moment. It contains nothing more about data protection, other than to mention it as part of the pleadings: damages would not be recovered twice over if there were a data protection breach, so perhaps the point is pretty well moot anyway, but I can't immediately see anything in the facts that would be actionable. What personal data were involved? What did the BBC or South Yorks Police do with any such data? Data protection legislation is obviously an important part of the scheme of protection for an individual's privacy, but this doesn't seem to be a case in which it adds anything.

Yesterday at Prime Minister's Questions, Anna Soubry MP (whom I knew quite well, many years ago) asked for government support for a bill she had introduced (if it's a new one, it seems to be in the same terms as one she introduced in 2010) to protect the privacy of people being investigated by the police. She proposed that it be known as Cliff's Law. Sorry, Anna, but the Copyright and Duration of Rights in Performances Regulations 2013 (SI 2013/1782) got there first.

The Prime Minister made the point (which has also been made by others, including The Guardian here) that revealing names can encourage other victims to come forward. (It can also, of course, encourage non-victims to take a chance too, but that's another issue.) That's hard to argue with, but in the context of the Richard case surely one could say that the suspect's reasonable or legitimate expectation of privacy, which is intact while the police are searching his house for evidence, is not nearly so strong when the police have begun to assemble a case, particularly if the case is a strong one. If there is (say) a reasonable chance that there are more victims who have not come forward, that further dilutes the expectation of privacy. I am no human rights lawyer, but this situation seems to be covered by Article 8.2, a carve-out for law enforcement purposes, and Article 10 is not the right provision on which to rely for this purpose - although I suppose the media would have to be able to rely on it even if 8.2 allowed the police to name names.

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