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The BBC and Cliff Richard: in terms of press freedom, this is a sideshow
The BBC has dropped the idea of appealing against the award of damages to Cliff Richard for invasion of privacy, but continues to muddy the waters with fake legal arguments.
David Elstein
Image: Sir Cliff Richard speaking last month after being awarded damages against the BBC. Credit: Victoria Jones/PA Images
On August 15th the BBC finally threw in the towel. On the last day before it had to decide whether to seek permission from a Court of Appeal judge to take the Cliff Richard case to appeal, it announced it would not challenge the judgement. The BBC now faces rulings by Mr Justice Mann, the trial judge, on how much of Cliff Richard's costs it will need to pay, which will inevitably take its total bill well above the current £1.9 million. The amount could rise perhaps to £2.25 million, making the decision to name the entertainer as the subject of a police investigation easily the most expensive editorial error in the BBC's history.
Yet whilst admitting defeat the BBC continued to churn out false claims about the significance of the case, and continued to be supported by outside journalists who seem not to have read the original judgement.
The BBC claims that Mr Justice Mann's ruling makes it illegal to report the fact of a police investigation into an individual, which is wholly untrue. As the judge went to great lengths to explain, all he did was exercise the dual elements in the 1998 Human Rights Act, balancing freedom of speech (article 10 of the Act) against the right to privacy (article 8).
No new legal precedent
Under the Act, there is no absolute right to freedom of speech, nor to privacy. What the judge said was that the presumption of privacy in principle extends to those being investigated by the police, unless a public interest argument trumps that presumption. He did not say anything to the effect that it would normally be illegal to name the subject of an investigation, as the BBC's legal correspondent claimed on its own news programmes on Wednesday. The judge emphasised that he was just looking at this particular case, and was not creating any precedent.
An obvious example of public interest would be – as the judge put it – a desire to "shake the tree": encouraging other possible victims of a criminal to come forward (as had happened in a number of cases where men accused of sex abuse faced additional allegations once the first allegation was publicised). But that has almost always happened only after the accused has been arrested, or charged: something that never happened in Cliff Richard's case. Indeed, in this case, the police deliberately chose not to "shake the tree" by naming Cliff Richard. But the BBC took that decision out of the hands of the police (and pragmatically declined to advance that argument as a public interest defence when the case came to court).
The judge could find no public interest element in the BBC's decision to name Cliff Richard. It was therefore inevitable that the BBC would be found to have invaded his privacy. If it had simply named him once, in a late night bulletin, the damages would have been minimal: indeed, it is highly unlikely that Cliff Richard would then have spent even £4,000 pursuing an action against the BBC, let alone £4 million.
That anyone – journalists, lawyers, the BBC – could have drawn from Mr Justice Mann's ruling the idea that a new legal principle had been established is astonishing. There were two more journalists from outside the BBC, plus the BBC's own Director of Editorial Policy and Standards, David Jordan, spouting this nonsense on Wednesday's Radio 4 "The Media Show" yesterday. The judge had simply done what many judges had done before: implement the provisions of the 1998 Act.
Of course, the BBC's overwhelmingly bad behaviour in the way it reported the story has led to it being ordered to pay significant damages, which in practice will be dwarfed by its contribution towards Cliff Richard's costs, and by its own legal costs, when a simple apology two years ago could have saved all those millions.
Mr Jordan raised a point today that the BBC's lawyers had argued in court: that Mr Justice Mann had allowed a claim for damages to include damage to reputation, which was a new development. Yet as the judge very reasonably pointed out, if the invasion of privacy led to reputational damage that could be demonstrated and measured, why should the plaintiff not be compensated? And even this does not change the law: any future claim for such damages will be assessed by some other judge, looking at the particular facts, and the issue may at some point end up in the Court of Appeal. In terms of the main question of press freedom, it is a sideshow.
The BBC is now mis-reporting the case
Meanwhile, the BBC continues to publish comment that is simply incorrect, not least in a statement from its Director-General, Lord Hall, who said, "we believe that the judge erred in law in finding that broadcasters and journalists, when reporting on matters in the public interest, normally have no right to publish the name of a person who is the subject of a criminal investigation".
The judge said no such thing. He simply said that the broadcaster or journalist had to specify the public interest involved in order to override the right to privacy. In this case, the BBC's attempt to do so was so feeble that he had no hesitation in dismissing it. However many times the BBC reiterates its false claim – and other journalists recycle it in the belief that they have an absolute right to name suspects, irrespective of the requirement for a public interest to be established, and of the 1998 Act – it remains false.
I have a further concern: the way the BBC has reported this issue on its own broadcast outlets. Today on The Media Show, host Amol Rajan gave David Jordan a good going over, but the other two guests on the programme were both firm believers in the big lie about the threat to free expression, citing the possibility of flushing out further allegations by naming a suspect – a line of "public interest" defence the BBC did not offer in court, for the simple reason that the police themselves had expressly chosen not to name Cliff Richard. Indeed, Rajan even re-broadcast the same, mistaken, opinion from an earlier show, expressed by former BBC Director-General Mark Thompson (who seemed not to have read Mr Justice Mann's judgement).
Critical voices
Three times in the last month I have been approached by the Today programme on this topic, most recently to see if I would support the BBC in seeking to appeal. When I replied that I thought an appeal would be a big mistake, no invitation to appear materialised. Former BBC chairman Lord Patten has used an appearance on Newsnight to lambast the BBC's behaviour, and Lord Grade, another former chairman, has done the same in a brief article in The Times (which itself persistently misreports the case in its leader columns). Anna Soubry (a former journalist and lawyer) occasionally appears on the BBC correcting some of the mis-statements, but still they keep on being repeated.
Even Ian Murray, executive director of the Society of Editors, has opined that "Parliament should now urgently consider whether such a step towards individual privacy against the protection of society's overall liberties is acceptable" – a bizarre interpretation of the judge's ruling.
No doubt following the same logic, Lord Hall yesterday wrote to the Attorney General, asking for his office to review the law over naming suspects. He was immediately rebuffed in a curt response saying this was not a matter for the Attorney General's office, and that the letter needed to be "re-directed" (without a suggestion as to where).
It will take a great deal of accurate reporting to dislodge the impression that Mr Justice Mann has "changed the law around the naming of suspects". That reporting will clearly not come from the BBC, or, indeed, the great bulk of what used to be called Fleet Street, with their vested interest in limiting the right to privacy.
There is, of course, another reason why the BBC continues to obfuscate and mislead on this matter: to avoid having to deal with the utterly indefensible behaviour of its most senior news executives, and, consequently, its deep resistance to settling with Cliff Richard. Lord Hall effectively acknowledges that he supported this refusal to admit fault, in an email to BBC staff today saying: "we tried hard to explore a settlement before this came to court, but it would only have been possible to do so if we had conceded that it was unlawful to identify Sir Cliff in our reports. We couldn't do that."
Yet Mr Justice Mann decided it was unlawful, and it is hard to find anything in his careful judgement as grounds for disagreeing. The BBC should have realised this four years ago when it reported the story with minimal concern for Cliff Richard's legal right to privacy, and certainly two years ago when it had a chance to settle.
Instead it chose to expose itself to public humiliation in a court hearing, and to spending over £2 million on defending the indefensible. But by continuing to argue that black is white and that the judge "erred in law" (maybe he will sue for libel if the BBC carries on saying that), resignations and disciplinary action can be avoided: so, no change there, then.