Gavin Drake

Journalist

Why the Cliff Richard privacy judgment is not a threat to the freedom of the press

Cliff Richard performing at the State Theatre in Sydney, Australia, in February 2013.
© Eva Rinaldi / Wikimedia

Let me start with an important proviso: I have not read the judgment in the Cliff Richard privacy case. I will do later and may provide a more detailed response later. That said, I am not in one bit surprised to hear that he has won his claim against the BBC.

My late wife, Jill Saward, campaigned heavily against moves by some to provide anonymity for those accused in cases of sexual violence. This was a campaign that I supported. So you may think that I would be opposed to this judgment. Not one bit. Jill herself made clear that the coverage of the Cliff Richard case was wrong.

The reason is this: Cliff Richard had not been accused of sexual violence – not by the police or prosecution authorities. Nor had he been arrested. The BBC news reports of the police investigation – including live helicopter shots of his home as a search warrant was executed – was the first Cliff Richard knew of the investigation.

This makes a mockery of an oft-quoted part of the BBC’s defence: that they reported the singer’s denial at every stage. He couldn’t deny it at the first stage, because he didn’t know about it until a friend telephoned him at his home in Portugal to let him know what the BBC was reporting.

It has always been the case in English law that the police need less evidence to arrest somebody than the media need to report that arrest. Of course, that doesn’t mean that arrests can’t be reported; but in doing so journalists and media need to be aware of the risk, as McNae’s Essential Law for Journalists says (22nd edition, page 44), that “publishing a statement that someone is under investigation, even when this is factually correct, may be defamatory because it creates an inference that he/she is guilty.”

McNae’s goes on to say that: “In reality, when reporting high profile investigations, especially if a celebrity or public figure is a suspect, media organisations may choose – within the fierce competition to break news – to publish the suspect’s name before it is known if he/she will be charged. . . News organisations might decide that the person is unlikely to sue for libel because, for example, a celebrity or politician may not wish to alienate the media or stir up more publicity.”

The Police mishandled every aspect of their investigation into the allegations against Cliff Richard – even refusing to speak with a credible witness who was with Cliff Richard throughout the day that the “offence” was said to have been committed.

Every allegation of sexual violence needs to be investigated. And they should be investigated thoroughly. Victims and survivors deserve justice. But justice means that investigations should be allowed to proceed without prurient media interest.

The head of news at the BBC, Fran Unsworth, has said that the judgment “creates a significant shift against press freedom.”

No. It doesn’t.

The judgment reinforces the law as it has always stood. The fact that news organisations in recent years haven’t been operating within the law as it stands, does not mean that the law has been changed. It was just that, as McNae’s said – media organisations took the view that people were unlikely to sue.

There will inevitably be renewed calls for anonymity for people accused of sexual violence until they are convicted. This case should have no bearing on such cases. This is a case where the BBC wanted an exclusive sensationalist report. It was not a case where the police wanted, or needed, publicity to support an investigation; nor was it the case that the investigation had progressed to the point that the police felt that Cliff Richard should have been arrested.

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© Gavin Drake 2017