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Media will have to ‘walk on eggshells’ as result of Sir Cliff privacy ruling against the BBC, lawyers say

By PA Mediapoint and Press Gazette

Media organisations will “have to walk on eggshells” when reporting police investigations following the ruling in Sir Cliff Richard’s privacy case against the BBC, a specialist lawyer has said.

Another said the case could prove “very expensive” for the BBC while the Society of Editors has warned of “worrying consequences” for press freedom.

Sir Cliff today won £210,000 in damages, with more to be determined at a later hearing, over the BBC’s “somewhat sensationalist” coverage of a police raid on the singer’s home in August 2014.

South Yorkshire Police was investigating a child sex allegation made against Sir Cliff dating back to the 1980s but he was never charged and the case was eventually dropped in 2016.

In his ruling at the High Court today, Mr Justice Mann said identifying Sir Cliff was not in the public interest, despite the general public debate around other investigations involving celebrities and historic sex abuses.

He said: “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.”

BBC director of news and current affairs Fran Unsworth said the judge had created new case law which “represents a dramatic shift against press freedom and the long-standing ability of journalists to report on police investigations, which in some cases has led to further complainants coming forward”.

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Nicola Cain, who works at law firm RPC, agreed, saying: “This is a landmark judgement in many ways, all of which are bad for the media.

“The media is going to have to walk on eggshells when reporting on police investigations from now on.

“The judge found that even if an investigation involves public activity, and reporting on it is in the public interest, an individual can still have a reasonable expectation of privacy in not being identified.

“This goes against several previous decisions which recognised the importance to the media of identifying individuals in coverage.”

Cain and others also pointed out that Sir Cliff’s £210,000 in damages – the figure before any further special damages are awarded – “dwarfs” the previous record for a privacy case.

Max Mosley was awarded £60,000 in his action against the News of the World in 2008 after it wrongly accused him of taking part in a “sick Nazi orgy” and published photos and video of him at a sex party.

Steven Heffer, who works for law firm Collyer Bristow, said: “The result of the judgement is not surprising, nor the amount of the award which is consistent with recent judgments including the phone hacking awards against the Mirror Group.

“However, the award of aggravated damages is unusual. In addition, an award of special damages for the financial loss is rare in a breach of privacy case and could prove very expensive for the BBC.”

Robert Conway, who works for law firm Vardags, said the case will have “far-reaching implications” on how the media report police investigations.

He said: “It could lead to a call to reform the law to give better protection to those under investigation for allegations such as this one, where assumptions are inevitably made about guilt or innocence before charges have even been brought. The award of aggravated damages is particularly telling of the court’s disapproval of the tactics employed.”

He added: “This is a case with huge implications for media reporting in general versus the rights of the individual to privacy under Article 8 of the Human Rights Act.

“The stigma that attaches to people accused of these sorts of crimes even when there is no evidential basis is immense and potentially life changing. The police’s own guidance clearly provides that in most cases a suspect’s identity should remain confidential during an investigation stage.

“In this case there was no legitimate investigative purpose behind the disclosure of Sir Cliff’s identity and the manner with which the police rode roughshod over their own guidance raises the clear need for an actual change in law to ensure the appropriate protection is in place to prevent such a serious breach of privacy occurring again.”

Dominic Crossley, who works for law firm Payne Hicks Beach, said Sir Cliff had made a “powerful statement” by obtaining judgement in the High Court.

“The BBC’s decision to fight the case always appeared high-risk: it will now have to pay the significant damages awarded plus the ‘special damages’ to be assessed at a later date and the enormous legal costs of fighting the case,” he said.

“Significantly, it will also have to absorb the new parameters the court has established for privacy and the reporting of police investigations.”

MP Anna Soubry has already called for “Cliff’s Law” to ban the media from naming suspects before they are charged, an idea supported by Jenny Wiltshire, who is based at law firm Hickman and Rose.

Wiltshire said: “Cliff Richard is not the first innocent person to be left in limbo while exposed to press speculation.

“As the press can find it difficult to resist naming suspects in high profile cases, the decision should not be left to their discretion.

“Today’s ruling may provide Parliament with the nudge it needs to legislate for a presumption of anonymity for all suspects pre-charge.

“Without new legislation, too many suspects will continue to be treated as guilty until proven innocent.”

But Ian Murray, executive director of the Society of Editors, said: “The ruling to make it unlawful that anyone under investigation can be named is a major step and one that has worrying consequences for press freedom and the public’s right to know.

“While the judge, Mr Justice Mann, made it plain that the court felt the BBC’s coverage of the police raid on Sir Cliff’s home was sensational, and the BBC have admitted they have lessons to learn and have apologised to the star for the distress he has been through, to go as far as to make it unlawful that anyone under investigation can be named is extreme.

“Certainly, such a major change in the law should be debated in Parliament and not come into force following one case involving a high-profile celebrity.”

Picture: Victoria Jones/PA Wire

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