The passing of the Human Rights Act 1998 brought the trade-off between certain rights to the forefront of human rights matters in UK courts by permitting the European Convention on Human Rights (ECHR) to work through the dualist system of the UK to provide recourse in domestic courts.[i]The rights of privacy and free expression are paradoxically an essential prerequisite for the enjoyment of one another which has brought a large number of problematic cases to the UK courts.
Following the recent High Court ruling in England between the BBC and Sir Cliff Richard the tide has turned against the media with the right to privacy being somewhat placed on a pedestal, although Article 8 was placed on top in Naomi Campbell’s case against Mirror Group Newspapers ruled on in the House of Lords,[ii]comparatively Campbell’s case seems more reasonable and palatable for the media to accept. These rulings do not only raise a question on the balancing of the rights concerned but also the role of judges and politicians in the legal system’s endeavour to balance the rights acceptably.[iii]
The case Sir Cliff Richard had brought and succeeded in against the BBC reflects on the BBC’s overhead coverage of a police raid on Sir Cliff Richard’s house in 2014 when historic allegations of sexual abuse were made against him – of which he was found not guilty. While the BBC argued that it was carried out in pursuit of fulfilling the public interest, Sir Cliff Richard argued it was a “gross invasion of his privacy”.[iv]The court conclusively ruled that the BBC overstepped their duty to the public interest and impeded on Sir Cliff’s privacy, further to that, the court rejected the BBC’s application for leave to appeal.[v]
An often-cited argument in cases alike Sir Cliff Richard’s centre around the ramifications on the innocent suspects reputational status. This surface level argument does not acknowledge that it hinges on the benefit hindsight, which should not, but inevitably does cloud judgment on the matter. Freedom of the media should be protected at every opportunity; however, it should not allow the sensationalist behaviour that the media often flaunts to trump that of privacy when it comes to a serious or questionable infringement of someone’s privacy.
To provide further example to general court judgment on these matters is the case of Von Hannover v Germany (No 2) ruled on in the European Court of Human Rights (ECtHR) in 2012. Three photographs were published of Princess Caroline of Monaco whilst on a family holiday, however, only one was found to be justified under Article 10 of the Convention which held information regarding Prince Rainier’s health and thus was found to be contributing to the general debate of public interest. The two remaining photographs were deemed to fall short of this and were considered irrelevant to the general public interest and therefore were an invasion of Princess Caroline’s privacy.[vi]
The public interest concept is a difficult balance to strike for the courts, however, Campbell v Mirror Group Newspapers (MGN) 2004 provides some clarity and in some measure, straddles the line between the two rulings above indicating the parity between them. The defendant newspaper published an article on Campbell’s drug addiction and alongside it was photographs of her leaving a drug addicts group meeting, it is intriguing that the Court of Appeal ruled that the information of medical treatment was in fact necessary and in the public interest alike in Von Hannover v Germany, however, the House of Lords overturned this thereby stating the information was confidential and private. A ruling as such gains traction and wide consensus even before publication as no one would regard medical information being leaked to be in the public interest due to the margin of appreciation afforded to all domestic rulings. It appears that the public interest defence is defined by the consensus of political opinion in Article 10 matters albeit clouded by hindsight.
The influx of privacy cases brought in UK courts following the HRA 1998 has spurred on the ‘judicialisation of politics’ leading to decisions alike Sir Cliff Richard’s,[vii]which at first glance only carry monetary detriment to the losing party, however, this decision is bound to have a ‘chilling effect on the way the press operate’ due to the restraint it places upon their publicising scope.[viii]Remarking on Sir Cliff Richard’s case judgment, Theresa May alludes that forcing the media to maintain anonymity of suspects when reporting will ‘hamper police investigations’,[ix]thereby highlighting that the issue will run through the criminal justice system as the media is an effective medium through which victims come forward and with such limitations placed on the naming of suspects would dramatically decrease the number of victims being heard or coming forward.
Accordingly, the political climate surrounding the media appears to, in recent years, have been particularly oppressive on their activities Europe-wide. Following the attacks in 2015 at Charlie Hebdo in Paris “media freedom in the region was threatened by violence, new surveillance and antiterrorism laws, and verbal attacks or interference from politicians and government officials”, although likely to have been deployed for the protection of individuals they hampered the media’s freedom through fear they faced in publicising. The media are increasingly having to guard themselves and assess their publications before they are sucked into the world of social media and into the masses of strong opinion.
The growth of social media has undoubtedly played a role in the inrush of contentious cases as it has eroded the practical social boundaries on privacy which were once understood.[x]With the use of social media exponentially increasing media coverage and their viewer base – opinions are increasingly being heard by and made by the masses, which is further opening up the remit of the public interest and evidently blurring the lines between itself and privacy of the individual.
Noting such it is particularly interesting to assess the impact of the Defamation Act 2013 whereby Section 1 of the Act outlines the “serious harm” test regarding the repercussions a publication or statement may have or has had on an individual’s reputation.[xi]In context this ties in with the public interest defence and to a certain degree makes the parameters of the defence clearer. Although it is not as black and white as it seems, the level of harm felt would depend on the individual and the openness of their information or their reputational status. In reality, the Defamation Act has done little but codify the public interest defence and it is easily subverted by differing opinions on what constitutes “serious harm”.[xii]
In weighing up the public interest in cases concerning freedom of the media comes the greatest hurdle to overcome for all judges and political actors. Deciding cases on a case by case basis is best suited to the difficulty found in defining what is covered by the public interest. It is an issue that is unlikely to subside; opinion will continue to be different among individuals and groups, however, this should not be at the expense of the media’s freedom and the courts are best placed to make this judgment without political opinion or status particularly when weighing it up against the Right to Privacy. The media need to tread carefully so as not to overstep into the territory of confidential or private information; each of the three rulings are in turn a stark reminder of this. It will be interesting to see how the courts will deal with these rulings in turn, will they overlook the Sir Cliff Richard ruling or use it to tighten the grip of the ruling in Campbell’s case?
[i]Greenslade R, Editors v Judges: which right is supreme – Press freedom or privacy? (The Guardian, 20 May 2016) <https://www.theguardian.com/media/greenslade/2016/may/20/editors-vs-judges-which-right-is-supreme-press-freedom-or-privacy> accessed 19 July 2018
[ii]Campbell v Mirror Group Newspapers 2004
[iii]Greenslade R, Editors v judges, The Guardian
[iv]Cotter L and Hitchcock A, Sir Cliff Richard awaits judgment on legal battle with BBC, (Sky Broadcasting, 09 May 2018) < https://news.sky.com/story/sir-cliff-richard-awaits-judgment-on-legal-battle-with-bbc-11365598> accessed 23 July 2018
[v]Press Association, BBC is refused leave to appeal against Cliff Richard privacy ruling, (The Guardian, 26 July 2018) <https://www.theguardian.com/music/2018/jul/26/bbc-agrees-to-pay-sir-cliff-richard-legal-bills-privacy-case> accessed 28 July 2018
[vi]Brown H, Privacy v the right to freedom of expression: Clarification from the ECHR, (Farrer & Co, February 2012) <https://www.farrer.co.uk/Global/Briefings/10.%20Media%20Group%20Briefing/Privacy%20v%20the%20right%20to%20freedom%20of%20expression%20Clarification%20from%20the%20ECHR.pdf> accessed 30 July 2018
[vii]Newell B, Public Places, Private Lives: balancing of privacy and freedom of expression in the United Kingdom, The Information School (University of Washington) <https://onlinelibrary.wiley.com/doi/pdf/10.1002/meet.2014.14505101029> accessed 1 August 2018
[viii]Evans M, Privacy vs freedom of expression: how the law has developed, The Telegraph (18 July 2018) <https://www.telegraph.co.uk/news/2018/07/18/privacy-vs-freedom-expression-law-has-developed/> accessed 23 July 2018
[ix]Dixon H and Boyle D, Sir Cliff Richard privacy ruling: giving suspects anonymity can stop other ‘victims’ coming forward, (The Telegraph, 18 July 2018) <https://www.telegraph.co.uk/news/2018/07/18/sir-cliff-richard-wins-high-court-privacy-battle-against-bbc/> accessed 25 July 2018
[x]Howells R, Freedom of the press vs privacy rights, (UCL blog, 17 February 2012) <http://blogs.ucl.ac.uk/events/2012/02/17/freedom-of-the-press-vs-privacy-rights/> accessed 27 July 2018
[xi]Defamation Act 2013, S.1
[xii]Dunham J, Press Freedom in 2015: The Battle for the Dominant Message (Freedom House 2016) <https://freedomhouse.org/report/freedom-press/freedom-press-2016> accessed 1 August 2018