Richard v The British Broadcasting Corporation (BBC) & Anor

A person under police investigation ordinarily has a reasonable expectation of privacy in the fact of the investigation. A search under warrant does not, without more, remove that expectation. Private information also retains its quality merely because it reaches a journalist.

Where articles 8 and 10 are engaged, neither has automatic priority. The court must focus intensely on the particular rights, consider the justification for interfering with each, and apply proportionality. A general public interest in police investigation of historic sexual offences does not necessarily justify identifying the suspect.

Compensation for misuse of private information may include distress, loss of autonomy, damage to dignity, health, status and reputation. Reasonably foreseeable expenditure incurred to contain consequential reputational harm may also be recoverable.

The claimant was a prominent entertainer who became the subject of a police investigation concerning an alleged historic sexual offence. A BBC reporter learned of the investigation from a confidential source. South Yorkshire Police later confirmed details and promised advance notice of a search after the reporter created the impression that the story might otherwise be published prematurely.

The BBC received advance notice, filmed the search from a helicopter and repeatedly broadcast the claimant's identity, the investigation and the search. No charge was ultimately brought. South Yorkshire Police settled the claimant's privacy and data-protection claims, accepted liability and paid £400,000 damages.

The trial determined the BBC's liability for misuse of private information, general and aggravated damages, specified causation issues concerning special damages, and contribution claims between the BBC and the police. The central questions were whether the claimant reasonably expected privacy in the investigation and search, whether article 10 justified publication, and how responsibility should be apportioned.

1. Claim against the BBC succeeded. A suspect ordinarily has a reasonable expectation of privacy in the fact of a police investigation. The stigma arising from public knowledge of an investigation supplies an important justification for that rule. It remains a fact-sensitive principle rather than an invariable right. A search under warrant forms part of the investigation and does not, without more, remove the expectation of privacy. Nor does private information lose that quality merely because it reaches a media organisation.

2. The claimant had a strong reasonable expectation of privacy in both the investigation and the search. His public status and public expression of Christian beliefs did not surrender privacy concerning unsubstantiated allegations. Filming into his flat also infringed his privacy, although it added little independently to the principal claim. No trespass by the helicopter was established.

3. In balancing articles 8 and 10, neither right had inherent priority. The court applied an intense focus to the particular rights, the justification for restricting each and proportionality. There was a substantial public interest in reporting that police were investigating historic sexual abuse, including allegations against people in public life. There was no material public interest in identifying this claimant. The seriousness of the intrusion outweighed the BBC's freedom of expression.

4. The balance was reinforced by the confidential origin of the information, the reporter's use of an implied threat to obtain confirmation and advance notice, the inadequate opportunity afforded for a response, and the dramatic and sensationalist presentation. The helicopter footage added little information but materially magnified the invasion. The BBC was liable for broadcasting the investigation and search.

5. Privacy damages may compensate for distress, loss of control over private information, damage to dignity and health, and damage to status and reputation. The court awarded £190,000 basic general damages. Submission of the infringing coverage for a broadcasting award caused additional distress and justified £20,000 aggravated damages, making £210,000 in total.

6. Reasonably foreseeable legal expenditure incurred to contain consequential media stories, internet abuse and blackmail, and to restore reputation after the decision not to charge, was recoverable in principle. Select Committee and United States immigration expenditure fell outside the scope of liability. Factual and legal causation were also established for the lost book opportunity, subject to later quantification.

7. The Civil Liability (Contribution) Act 1978 applied notwithstanding the BBC's article 10 rights. The BBC's publication was the more potent cause of damage. Shared damages were apportioned 65% to the BBC and 35% to South Yorkshire Police, excluding £20,000 aggravated damages attributable solely to the BBC and £5,000 attributable solely to the police. Special damages were left for a further inquiry.

This was a first-instance trial. Before trial, South Yorkshire Police settled the claimant's claims against it, accepted liability, apologised and paid £400,000 damages. The High Court then determined the claim against the BBC, specified special-damages issues and the parties' cross-claims for contribution.