BBC restrained from naming celebrity accused of sexual misconduct

Background

The claimant, a high-profile individual received a “right of reply” letter from the BBC informing him about an investigation that the BBC had conducted into sexual misconduct allegations against him. The BBC said that it had spoken to “a number of women who had given detailed accounts of behaviour by him including the commission of serious sexual offences”. They noted that they were aware that the claimant had been arrested in relation to allegations by two of the complainants and interviewed under caution in relation to those of a third, and that police investigations were continuing.

In evidence before the court, the BBC said that it had found that at least a quarter of businesses in the sector in which the claimant works have had employees investigated by the police for serious sexual offences, and yet the sector does not have any policies or procedures for employees who are accused of violence against women, nor any consistency of approach to allegations. They intended to use the claimant’s case as a stark illustration of those issues. Despite this, the BBC claimed that the involvement of the police would not be the focus of its reports.

The claimant sought an urgent interim non-disclosure injunction, without having issued an application or a claim. The court listed a hearing on receipt of undertakings: (a) from the claimant, that he would issue an application and claim; and (b) from the BBC, that it would not publish, communicate or disclose certain information relating to the allegations about the claimant until the hearing, although it would not prevent them from reporting a charging decision by the CPS.

The police had not named the claimant in connection with their investigations. There had been some reporting of developments in the case, but no other mainstream media outlets had named the claimant. There had been some rumour and speculation on social media about his identity, and part of the BBC’s story would draw attention to the online trolling of complainants of sexual offending, including to illustrate the effects of, in its view, insufficient clarity and action from the sector in which the claimant works in response to their complaints.

Issues

The claimant sought to restrain the BBC’s intended reporting on two grounds:

1. such reporting would be in contempt of court and would interfere with his right to a fair trial under Article 6 of the European Convention on Human Rights; and
2. the intended reporting would constitute a misuse of his private information.

Decision

Contempt of court / Article 6

In her judgment, Mrs Justice Collins Rice noted that, although there had been some speculation on social media already about the identity of the claimant, naming the claimant in connection with criminal investigations into allegations of serious sexual offending would undoubtedly be a substantial game-changer, attracting significant publicity and interest. Collins Rice J commented that “it would be absurd to proceed on the basis that the effect of that publicity would or could be confined to stimulating informed debate on matters of principle relating to sectoral governance and the vulnerability of women complaining of mistreatment”, adding that it would “detonate an uncontrolled explosion of personal comment and speculation on the allegations themselves, in both mainstream media and especially online”, of which the claimant would be “the epicentre” and which he would be “powerless to stem or withstand”.

The intended publications would inevitably present the complainants’ narratives in an incomplete and unbalanced manner, and the claimant would have no fair opportunity to respond to the allegations beyond a bare denial of guilt, which the judge said would have “little real prospect of being seriously attended to or making narrative headway in the surrounding din of publicity”.

The judge accepted that it was possible that publicity might encourage other complainants to come forward (whether about the claimant or more generally). Yet there was also a risk of what she referred to as the “bandwagon effect”, i.e. “the risk in today's social media climate that publicity would not only flush out others believing they have cause to complain, but may well incite copycat false complainants, which is not fair to a suspect, helpful to the police or conducive to the effective administration of justice”.

The fact that such complainants came forward after the publication of the BBC’s story might also undermine their evidence on cross-examination and subject them to allegations that they were influenced by the publicity.

Collins Rice J concluded that publication would create a “substantial and manifest” risk that the course of justice in the criminal proceedings would be “seriously impeded or prejudiced”, given the “enormous” degree of publicity and public reaction that publication by the BBC would generate, urging that: “the reality of modern public discourse must be faced.”

Accordingly, she decided to restrain publication on grounds of contempt of court, and so there was no need to consider whether reliance on the claimant’s Article 6 right alone would have produced the same result.

Misuse of private information

Collins Rice J noted that, had she not been sure that publication would have been in contempt of court, she would have been satisfied that the claimant would be likely to establish at trial that it would have amounted to a misuse of his private information.

As per the well-known case of ZXC v Bloomberg,^[2] the legitimate starting point is that a claimant has a reasonable expectation of privacy in criminal allegations in the period between arrest and charge. Collins Rice J rejected the BBC's assertion that that starting point is only relevant to cases in which information has been obtained (a) in breach of confidence and (b) wholly as a result of criminal investigation by organs of the state. There is no authority for the proposition that the fact that journalistic investigations are undertaken in parallel with criminal investigations deprives an arrested claimant of the ZXC starting point.

The judge chose to look at each of the established Murray factors^[3] (and the circumstances of the case as a whole) to make her assessment of whether the ZXC legitimate starting point held up.

Collins Rice J did take into account that:

• the BBC obtained its information either from the complainants or else by its own investigations;
• the complainants had certain rights to tell their stories;
• other women might have had an interest in being alerted to potential risks of becoming intimate with the claimant;
• there was a public interest in the story about the sector in which the claimant was employed; and
• the identification of the claimant would have pursued a legitimate aim.  

Nevertheless, the judge concluded that the dominant features of the case were the intimate sexual and relationship nature of the conduct in question, and the impact that immense publicity at this stage in the criminal proceedings would have on the claimant's human autonomy, reputation and prospects for justice.

Accordingly, the judge ruled that the claimant had a reasonable expectation of privacy in the information.  When that reasonable expectation of privacy was weighed against the public interest in the proposed article and the BBC’s right to freedom of expression, the judge found that the BBC could still publish its article without identifying the claimant. Collins Rice J deemed it right to impose such a restriction, given the powerful public interest in criminal justice both in general and in the particular case of the individual claimant.

Comment   

This case provides a useful examination of the extent of the ZXC legitimate starting point of a reasonable expectation of privacy between arrest and charge. There is also some helpful commentary on how to balance the competing public interests, such as the media’s right to freedom of expression and the integrity of the criminal justice system. Nevertheless, each case will turn on its facts, and there were many nuanced reasons why publication was restrained in this particular case.

There may be a risk that if media organisations get wind of a high-profile criminal investigation, judgments like this will make them rush to get the story out before they will be curtailed from doing so (assuming, of course, that the usual starting point applies). We can only hope that they will behave responsibly and show appropriate responsibility and respect for the legal position. As the judge in this case noted, citing the rule in the rule in Bonnard v Perryman,^[4] “if a suspect is not charged – and if he has not yet been arrested – then the law of defamation is the principal restraint on publication and claimants face a high hurdle indeed at the interlocutory stage”.