Sir Cliff Richard v The BBC | Blurring the lines between libel and privacy law

On 18 July 2018, Mr Justice Mann handed down the eagerly awaited judgment in the case of Sir Cliff Richard v The BBC. The decision, which blurs the lines between privacy law and libel, will assist claimants seeking to recover special damages for a breach of privacy rights and potentially also for libel and malicious falsehood.

What was the dispute about?

The claim arose out of events that took place in August 2014, when the BBC broadcast footage of police from South Yorkshire searching the entertainer's property in relation to an historic complaint of sexual abuse.

Following the police's subsequent decision not to charge, Sir Cliff brought a privacy claim against the BBC and South Yorkshire Police. The case turned on whether Sir Cliff had a reasonable expectation of privacy in relation to the fact of the police investigation and the search of his property, and if he did have such expectation, whether the BBC was justified in its broadcast by virtue of its rights of freedom of expression. In finding for Sir Cliff, Mann J came to the clear conclusion that "Sir Cliff's privacy rights were not outweighed by the BBC's rights to freedom of expression."

The wider impact of the judgment: blurring the lines

Following the judgment, much will be written about the so-called 'chilling effect' of this case on the media’s ability to report on matters relating to crime – in particular, whether a suspect under investigation can be named by the media prior to their arrest or charge. However, once it is accepted that a suspect in a criminal investigation has a reasonable expectation of privacy in relation to the fact that he/she is such a suspect, each case will turn on its facts as to whether there is a public interest justification for revealing that fact to the world.

Perhaps the more striking aspect of the judgment from a legal perspective was the blurring of the boundaries between libel and privacy law. By following the dicta of Lord Sumption in Khuja, the judge found that the protection of damage to reputation is part of the function of the law of privacy, as well as the function of the law of defamation. This paved the way for Sir Cliff to recover not just general damages (including for damage to reputation) but also certain costs incurred to mitigate damage to his reputation and financial losses suffered that were caused by the BBC broadcast.

The costs that Sir Cliff was entitled to recover as damages includes certain of the legal costs incurred by his solicitors on his behalf in taking steps to protect his reputation, by preventing acts which were apparently prompted by the BBC broadcast, or by bringing such acts to an end. These steps included:

• dealing with the print and broadcast media in order to prevent the publication of defamatory allegations;
• successfully seeking the removal of a Facebook page that contained offensive and defamatory content; and
• advising Sir Cliff in relation to media presentations following the decision by the police not to charge.

The judge found that the legal costs associated with these steps were factually and legally caused by the BBC, and as such, the BBC was liable to Sir Cliff for those costs.

Osborne Clarke comment

Until this judgment, there had not been clear authority for the proposition that the costs incurred by a claimant in seeking to protect their reputation and mitigate their loss as a result of a defamatory publication or an infringement of privacy rights would be recoverable as special damages. Now that such authority has been established (subject to a successful appeal), we are likely to see this case cited not just in privacy claims but also in libel and malicious falsehood claims.

Since the Defamation Act 2013 came into force, companies have been under a legal burden to show that defamatory communications have caused or are likely to cause serious financial loss in order to be actionable. Such loss, for example financial loss caused by lost contracts, is often difficult to prove. However, for those companies that are forced to instruct law firms and communications advisors to take steps to mitigate reputational damage, provided such costs are recorded and distinguished from the costs of the litigation, they will often be recoverable and therefore may help to meet the burden of proving serious financial loss.

So the case probably does shift the scales in favour of claimants and against the media, but not just in relation to the media's freedom to report police investigations.