In the middle of July 2018, the UK High Court handed down a judgment in a privacy case brought by Sir Cliff Richard, the rock ‘n roll star who began his career in the late 1950s.

In 2014 the Metropolitan Police Service was in the process of conducting investigations into allegations of historic child sex abuse against a number of individuals, including public figures. Richard was one of those being investigated arising from allegations that in the 1980s that he conducted himself inappropriately towards an adolescent boy. The Metro Police handed the investigation over to the South Yorkshire police.

A BBC journalist got a tip-off about the investigation into the allegations against Richard and reached out to the South Yorkshire police to find out more.

The police believed that the BBC would imminently broadcast a story on the allegations and decided that they would co-operate with the journalist to avoid any premature reportage on the investigation. As part of this strategy, the police gave advance notice to the journalist of a planned search of Richard’s property in Berkshire. The BBC booked a helicopter to get shots of the search and positioned their news teams at Richard’s other homes in Portugal and Barbados.

The BBC broadcast live footage of the property, the police officers walking to the property in the process of the search as well as Richard’s identity.

On the issue of truth (a defence to a defamation claim), the BBC was satisfied that an investigation was indeed taking place into the allegations. On the issue of privacy, the BBC believed that there was a public interest in news about a police investigation into a celebrity who was the subject of allegations of sexual assault of a minor.

Richard was in Portugal at the time of the broadcast of the search on his property and found out that the search had become public knowledge when he started receiving calls about the news.

The police investigation ultimately came to an end in 2016, with a decision by the prosecution services not to institute charges. Richard then brought legal proceedings for damages against the police and the BBC as a result of an infringement of his right to privacy. The police accepted liability and apologised to Richard in open court and settled the claims by payment of £400,000 in damages as well as £300,000 of his legal costs. The BBC, however, defended its case.

The court was tasked with balancing Richard’s rights to privacy, on the one hand, and the BBC’s freedom of expression, on the other. The main question was whether Richard had a “reasonable expectation of privacy” and, if so, whether there was, as argued by the BBC, a public interest that justified the broadcast of the investigation and search, and of his identity as a suspect.

The court held that whether or not there is a reasonable expectation of privacy, privacy relating to a particular police investigation will depend on the facts of each case. There is no universal test or single determinative factor.

Here, the relevant factors included the effects of the broadcast on the emotional, physical and financial well-being of Richard, who is a public figure and “one of Britain’s most successful performers”; the seriousness of the allegations; the climate and context in which the allegations were investigated; and the reporting style and coverage of the story by the BBC (which the court considered to be dramatic and sensationalist).

A final important factor was the failure of the public to maintain the presumption of innocence of a suspect throughout an investigation “so that there was no risk of taint either during the investigation or afterwards (assuming no charge)”: in other words, members of the public may well equate suspicion with guilt.

Therefore, Richard had a prima facie reasonable expectation of privacy in relation to the police investigation. Public figures, the court held, are not necessarily deprived of a legitimate expectation of privacy by virtue of their fame. Nor does the fact that private information has landed up in the hands of the media per se affect the nature of the information as private or remove the reasonable expectation of privacy.

Reporting on the investigation and the search was a serious invasion of Richard’s privacy and required an equally serious justification, which the court found did not exist.

Any public interest in the broadcast was heavily outweighed by the seriousness of the invasion. In any event, even if the investigation was a matter of public interest, it did not follow that the identity of the subject of the investigation was also of any genuine public interest (other than of interest to “the gossip mongers”).

The result was that the court found the BBC liable for infringing Richard’s privacy rights, awarded damages of £210,000 and apportioned the damages to be paid at a ratio of 65:35 between the BBC and the South Yorkshire police. The BBC also confirmed that it would also pay Richard £850,000 in legal costs, and would not appeal the judgment to the Court of Appeal.

The effect of the Richard judgment is to in effect create a general rule that a person who is the subject of a police investigation has a reasonable expectation of privacy and cannot be named or identified by the media (at least unless a compelling justification for doing so exists). And while the BBC most certainly did not cover itself in glory in its reportage, the judgment poses a threat to freedom of speech.

In this context, it is illustrative to consider the South African position. There is a journalistic myth in South Africa that an accused person who has been arrested cannot be named in a news report until the first court appearance. This is not correct in law – there is no general statutory prohibition on naming an arrested suspect until the first court appearance (which usually happens within 48 hours of arrest).

However, in cases concerning sexual offences or extortion, the Criminal Procedure Act states that no person may publish “any information” relating to the charge until the accused has pleaded. This means that not even information about the accused’s identity may be published until he has pleaded in these kinds of cases. So, in the case of a person arrested facing a sexual offence charge, it is unlawful under South African law for the media to identify the person until he has pleaded. This is a highly restrictive approach which is most likely unconstitutional – it admits of no exceptions.

But this restrictive approach does not apply until a person has been arrested or summoned in connection with a sexual offence (or extortion) – in other words, it only applies once the formal criminal process has kicked in. There is no statutory prohibition that a person who is suspected of a committing a sexual offence and who has not been arrested or summoned to appear in a criminal court – like Cliff Richard in the English case – cannot be named before they appear in court.

Instead, the common law of defamation applies in this situation– which provides that if there is a public interest in naming a suspect, then the media can do so. Our law in this context appears to be more felicitous to free speech than the position as set out in England in the Richard case.

So to take a current example, the recent book by Mark Mannie and Chris Steyn The Lost Boys of Bird Island, publishes allegations that three former National Party ministers, Magnus Malan and John Wiley (both now deceased), an unnamed minister (who is still alive), and Dave Allen, a Port Elizabeth businessman (deceased), were involved in a paedophilia ring that operated during apartheid and perpetrated ghastly sexual crimes against children. There is no law prohibiting the naming of even the minister who is alive provided there is a public interest in doing so – which in our view there clearly would be.

However, once the criminal process has kicked in, the provisions of our Criminal Procedure Act ban reportage of any information until an arrested person charged with a sexual offence has pleaded. This ban is most probably unconstitutional. It does not optimally balance privacy and media freedom and instead has the result that there will be secrecy as to the identity of the accused for what may be many months, until the accused has formally pleaded. This prioritises privacy over freedom of expression even in cases where the public interest in knowing the identity of the suspect – who might be a high-ranking politician or public official, for example – is manifest. DM

Dario Milo is a partner and Molebogeng Kekana a candidate attorney at Webber Wentzel attorneys