All doors are now closed
Following Sir Cliff Richard's win in his privacy battle against the BBC this summer in the High Court, the losing broadcaster's thoughts turned to appeal.
Shortly after the judgment, the BBC was refused the chance to appeal by Mann J, the judge in the case, who said the proposed appeal did not have a real prospect of success and there was no compelling reason why the Court of Appeal should consider the case.
Nevertheless, the BBC could have sought leave to appeal directly from the Court of Appeal itself, a sort of second bite at the cherry. However, it would appear the BBC has purposely let the deadline for having that second bite pass. This means all the doors to an appeal are now closed.
Reasons for no appeal
The reported reason for opting not to appeal appears to be the acceptance that even if the Court of Appeal determined that Mann J got it wrong in law by failing to uphold the media's right to name an individual under police investigation, Sir Cliff's Article 8 ECHR right to privacy would still be breached. This is because of the specific nature of the reporting style deployed by the BBC in this case: one which took the broadcaster into the realms of helicopter sensationalism that it rarely visits.
There are other reasons for not appealing which may be read between the lines.
The higher precedent risk
Given the very real probability of the BBC losing again, the broadcaster risked a stronger precedent being set against media freedom by a higher court. The media has always steadfastly protected its Article 10 ECHR (freedom of expression) right and cutting its losses rather risking the right being eroded further was probably part of the thinking.
The costs of fighting on
An appeal would have been against the background (and likely public backlash) of another significant further legal spend by the broadcaster.
The pulse of the public
It would also have meant placing Sir Cliff through the wringer again, one which would likely give another set of lungs to anonymous online attackers of Sir Cliff. That itself could have substantially increased the BBC’s costs liability in the event of further loss, given that Sir Cliff was entitled to recover ‘special damages’ in his case relating to measures taken to stop defamatory and abusive allegations by third parties legally caused by the BBC’s broadcast.
In placing such further stress on Sir Cliff – a national treasure – it is unlikely the BBC would have achieved an aim of retaking the moral high ground and winning back public support. One might say this was part of its weighing up process too. With its own reputation to restore, the BBC will no doubt have taken the pulse of the public.
Fighting on another front?
Given all of this, the BBC has decided to take the fight for press freedom to another front. The BBC’s Director General, Tony Hall, has written to the Government to ask it to consider new legislation that would protect the right to report criminal investigations (see his letter here):
“We understand that the Court is likely to say that it is for Parliament, not the judiciary, to devise a statutory scheme setting out in detail the balance between competing public interests…”
“…we are now asking you, on behalf of the Government, to consider the merits of conducting a review of the state of the law on these issues, including an assessment of the need for primary legislation which will protect the right to report properly and fairly criminal investigations, and to name the person under investigation…”
In our view, the letter to the Attorney General is unlikely to yield any change. One might foresee the Government pay lip service to the lobbying while ultimately being of the view that the existing legal machinery is more than adequate and that the judiciary is well placed to determine each privacy battle within that framework. They are likely in our view to agree with Mann J at paragraph 322 of his judgment:
“[The BBC] may have been overstating the constitutional importance of this case a bit. I agree that the case is capable of having a significant impact on press reporting, but not to a degree which requires legislative, and not merely judicial, authority. The fact is that there is legislative authority restraining the press in the form of the Human Rights Act, and that is what the courts apply in this area. That Act will have had an effect on press reporting before this case because of Article 8, and the balancing exercise between Articles 8 and 10 is done by the courts under and pursuant to the legislation. The exercise that I have carried out in this case is the same exercise as has to be carried out in other, albeit less dramatic, cases. If the position of the press is now different from that which it has been in the past, that is because of the Human Rights Act, and not because of some court-created principle.”
In the Freeths IP & Media team we advise on the complexities of privacy related issues and actions for private individuals (and commercial entities on other side of the coin) every day. Consistent with current privacy decisions and the advent of the GDPR, we have seen a slow practical shift in the privacy/expression balance towards privacy, to create a new centre point.
The BBC's losing (but committed) fight in this case is just another example of a freedom of expression proponent seeking to find a return to the old axis in the balancing act.
It is important to remember (in the context of our jurisdiction's vast body of law) that we are still in the early days of this fight, which will continue to ebb and flow amidst the ever-changing demands brought by social, digital and technological advances in the world.
"...the BBC is writing... to ask the Government to consider a review of the law in this important area to protect the right to properly and fairly report criminal investigations, and to name the person under investigation."