Breach of privacy: BBC ordered to disclose information about Sir Cliff Police source
Although he has settled his claim against South Yorkshire Police (see our blog here), Sir Cliff Richard’s privacy and data protection claims against the BBC arising from the broadcaster’s coverage of the 2014 police raid of his home, continue in earnest.
Sir Cliff contends that the BBC’s Dan Johnson found out about the police investigation from someone in, or associated with, Operation Yewtree, the Metropolitan Police’s investigation into historic sexual abuse allegations. Sir Cliff’s case is that he had a reasonable expectation of privacy in relation to the existence and details of the investigation and that the passing of information to Mr Johnson was clearly covert and improper. The Metropolitan Police handed the investigation to South Yorkshire Police. It is alleged that South Yorkshire Police then gave Mr Johnson further information, for fear that if they did not, he would reveal the fact of the investigation before they were ready to conduct the raid. The BBC’s position, in short, is that there was not a reasonable expectation of privacy, which is, in part, evidenced by the fact that South Yorkshire Police voluntarily provided the information and that, in any event, their subsequent broadcast was in the public interest.
Sir Cliff made a request to the BBC for further information (pursuant to CPR Part 18) about Mr Johnson’s source. He asked whether or not Mr Johnson’s source was from within Operation Yewtree or someone who had obtained information from Operation Yewtree, contending that this could be confirmed without revealing the identity of the source. He was content for this to be answered ‘yes, or no’. The BBC declined to answer, suggesting, initially, that to do so might lead to identification of their source, and, latterly, that mere information about their source was still capable of protection under Article 10 ECHR. Finally, they also suggested that the answer to Sir Cliff’s question was unlikely to prove significant in the determination of the dispute. The matter came before Mr Justice Mann on 26 May 2017. A copy of his judgment (Richard v British Broadcasting Corporation (BBC) & Anor  EWHC 1291 (Ch)) can be found here.
Such disputes require the Court to perform a balancing act as between the journalist’s right to respect the confidentiality of its source (a right provided by both section 10 of the Contempt of Court Act 1981 and Article 10 ECHR) and the other party’s ordinary procedural right and Article 6 ECHR right to a fair trial, taking into account any wider public interest.
Mann J accepted that the answer to an apparently general question such as the instant one could increase the risk of identification of the source, but on the evidence before him (over 119 individuals could, in theory and at first blush, have been responsible), he determined that the risk was not sufficiently great. He accepted, as a matter of principle, that Article 10 was engaged by the request for information: ‘a chilling effect may arise if a source feels that anything material is disclosed about him/her which was not intended for disclosure’, but held that disclosure of information does not entail the same weight as is given to disclosure of identity. In the present case, its weight was further diminished because the spotlight had already been shone on Operation Yewtree. Positive confirmation of the source would take things a step further, but would not be bringing anything entirely new to light. On the other hand, Mann J considered that if Mr Johnston had acquired his original information from a source whom he knew should not have disclosed it to him, that state of knowledge may be relevant both to the factual dispute about whether South Yorkshire Police provided the subsequent information voluntarily, or as a result of a threat to publish, and the question as to whether there was sufficient public interest in the broadcast. In all the circumstances the balance was in favour of the question being answered.
Articles are intended as an introduction to the topic and do not constitute legal advice.