Reporting police investigations, privacy rights and social stigma: Richard v BBC

ABSTRACT

In Richard v BBC, a media report revealing that the police were investigating a person in relation to alleged historic sex offence was found to violate the claimant’s expectation of privacy. The ruling is important in drawing new boundaries on what can be reported in relation to criminal investigations. This article examines the decision and considers its relationship with other areas of law. In particular, the decision showed an overlap with defamation in so far as injury to reputation was central to the claim. More broadly, the law of privacy can now limit the publication of information about prior convictions, suggesting greater protection is now offered for personal information relating to the criminal justice system.

KEYWORDS:

• Misuse of private information
• reputation
• criminal investigation

Acknowledgements

Thanks to Tom Gibbons for comments on an earlier draft.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 Richard v BBC [2018] EWHC 1837 (Ch), [2018] 3 WLR 1715.

2 ibid [248].

3 ibid.

4 College of Policing’'s Guidance on Relationships with the Media (May 2013).

5 Hannon v News Group Newspapers [2014] EWHC 1580 (Ch), [2015] EMLR 1 [87].

6 Richard (n 1) [99]

7 ERY v Associated Newspapers Ltd [2016] EWHC 2760 (QB), [2017] EMLR 9.

8 See ZXC v Bloomberg LP [2017] EWHC 328 (QB), [2017] EMLR 21 [31].

9 ERY (n 7) [59].

10 ZXC (n 8) [31].

11 See Richard (n 1) [250] and [262].

12 McKennitt v Ash [2005] EWHC 3003 (QB), [2006] EMLR 10 [135] and Ali v Channel 5 [2018] EWHC 298, [2018] EMLR 17.

13 Douglas v Hello [2005] EWCA Civ 595, [2006] QB 125

14 Richard (n 1) [265].

15 ibid.

16 A v B [2003] QB 195.

17 See CC v AB [2006] EWHC 3083 (QB), [2007] EMLR 11 and Mosley v News Group Newspapers [2008] EWHC 1777 (QB), [2008] EMLR 20

18 For example, see Defamation Act 1996, s.14.

19 XKF v BBC [2018] EWHC 1560 (QB).

20 NT1 & NT2 v Google LLC [2018] EWHC 799 (QB), [2018] 3 WLR 1165.

21 ibid [166].

22 R (L) v Comr of Police for the Metropolis (Secretary of State for the Home Dept intervening) [2009] UKSC 3 [2010], 1 AC 410; R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35, [2015] AC 49; Gaughran v Chief Constable for the Police Service of Northern Ireland [2015] UKSC 29, [2016] AC 345; R (P) v Secretary of State for the Home Department [2017] EWCA Civ 321, [2017] 2 Cr App R 12.

23 Richard, (n 1) [281]–[282].

24 Flood v Times Newspapers [2012] UKSC 11, [2012] 2 AC 273 [169].

25 See Lord Phillips in Flood, ibid [74].

26 Lord Dyson in Flood, ibid [199].

27 Compare A v B [2003] QB 195; McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73; Goodwin v NGN [2011] EWHC 1437, [2011] EMLR 27; Ferdinand v MGM [2011] EWHC 2454 for example.

28 Richard (n 1) [284].

29 ibid [286].

30 ibid [251].

31 See ‘Arron Banks Faces Criminal Inquiry over Brexit Campaign’ The Guardian (1 November 2018) and ‘Brexit Campaigner Banks Faces Criminal Inquiry over Funding’ The Times (2 November 2018).

32 Though a publication could still constitute a contempt at common law, see Contempt of Court Act 1981, s.6.

33 Richard (n 1) [255].

34 Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772, [2003] EMLR 11.

35 Richard (n 1) [345].

36 The courts may be wary of awarding large sums of damages for such injury, for fear of compensating for the loss of an underserved reputation. In Richard, such a concern did not arise as the underlying allegation was not true and the loss of reputation was undeserved. See text below on whether the claimant’s central was with the falsity of the allegation.

37 A Ripstein, Private Wrongs (Harvard University Press 2016).

38 Bonnard v Perryman [1891] 2 Ch 269.

39 Denisov v Ukraine, App No 76639/11 (25 Sept 2018) [98]. The Court stated that the point is not limited to injury to reputation, but also applies to 'any personal, social, psychological and economic suffering' that could be a foreseeable consequence of committing a crime.

40 Richard (n 1) [249].

41 Guardian News and Media [2010] UKSC 1, [2010] 2 AC 697 [66]. See also ZXC (n 8) [46].

42 Department of Education and Skills (DfES) v Information Commissioner and the Evening Standard (Information Tribunal, 19 February 2007); Re B [2007] EWHC 1622 (Fam), [2008] 1 FLR 482.

43 Khuja v Times Newspapers [2017] UKSC 49, [2017] 3 WLR 35 [34].

44 ibid [34].

45 ibid [8].

46 ibid [49]. Though Jefferies himself brought a libel action in relation to the media reports.

47 Khuja (n 43) [58].

48 See Lewis v Daily Telegraph [1964] AC 234, Lord Reid stating ‘there is a great difference between saying that a man has behaved in a suspicious manner and saying that he is guilty of an offence’. More recently, Dingemans J recently doubted that words meaning that a person is under investigation (and no more) would even be defamatory for the purposes of the s.1 of the Defamation Act 2013, Miah v BBC [2018] EWHC 206 (QB).