This blog post has been contributed by Dr Carol Brennan, Module Convenor for Tort law.
In the summer of 2023, it was reported in the Sun newspaper that an unnamed prominent BBC newsreader had been accused of sexual indiscretion. There followed days of fevered speculation in the press, social media and on the street about the subject’s identity. Expectations of a formal announcement by the BBC went unfulfilled.
An additional source of wide speculation was trying to understand the reason for the reluctance of the press to name names here. Under English law, barring exceptional situations such as national security, suspects in criminal cases normally lose any rights to anonymity at the point where they are charged by the police (while importantly retaining the benefit of that presumption that all are innocent until proven guilty). But what are the privacy rights of those merely under suspicion?
The answer comes in the relatively new tort action for misuse of private information. Developed in the wake of the coming into force of the Human Rights Act 1998, the fundamentals of this tort were laid down In Campbell v Mirror Group Newspapers in 2004.
Of course it should be noted that in addition to a privacy action, there would also be the possibility of an action in defamation, but only providing that the essence of a publication is untrue.
The application of misuse of private information to situations involving suspicion under the criminal law emerged from the case of Sir Cliff Richard v BBC. In 2014 Sir Cliff, a British entertainer, was away when his home was invaded as part of an extensive police operation, searching for evidence of alleged historic sexual abuse. Tipped off by the police, the BBC filmed the process from helicopters, and broadcast dramatic live coverage of the event. No criminal charges were ever brought against Sir Cliff and he was successful in his claim for misuse of private information against the BBC, due to the reputational damage and distress caused. It was held that the claimant had a reasonable expectation of privacy in the situation; secondly, that in the balancing of article 8 right to privacy against the article 10 right to freedom of expression, the former dominated here, given the relative lack of legitimate public interest in publication.
In 2022, the Supreme Court heard a misuse of private information claim brought by the anonymous ‘ZXC’ against Bloomberg media for publishing the fact that a UK law enforcement agency had requested his financial records from the foreign state where he resided, in the course of a wider criminal investigation. Although this case did not pertain to sexual abuse but rather business activities, ZXC believed that he deserved privacy while under investigation. Applying the fact-specific considerations from Richard, the views of the inferior courts were upheld by the highest court, in confirming the claimant’s reasonable expectation to privacy in the circumstances.
More recently, the extended period of anonymity followed by public speculation concerning the above newsreader inspired comment that media self-censorship indicated an over-reaction by the press to the rulings in Richard and ZXC. Despite the fact that these did not impose a blanket prohibition on publication in such circumstances, we may be experiencing ‘privacy-creep’, where fear of legal action has led to a presumption of anonymity, even before any substantive involvement of the criminal law, much less charges laid against the subject of the story.
What happened in the example under discussion? After a week had passed following the Sun publication, the wife of Huw Edwards a well-respected broadcaster who has been the ‘voice of the BBC’ for national events such as royal weddings and funerals, issued a statement confirming his identity in order to prevent any further damage to his mental health. The BBC continues internal inquiries into both the allegations and the way they were handled.