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Farrer & Co | Walking the tightrope between exposing wrong-doers and protecting the innocent accused

The scrutiny of serious misconduct by those in prominent and powerful roles has been a frequent theme in western world media coverage. The actions of the likes of Jimmy Saville and Rolf Harris have been followed more recently by the #MeToo movement (ignited by the allegations against Harvey Weinstein) in forming a key part of the news agenda and in raising awareness of the way in which individuals in the public eye have or are said to have exploited positions of power with dreadful consequences for their victims. In recent weeks, allegations have been made against Brett Kavanaugh, Cristiano Ronaldo and, more generically, against unnamed British MPs in Dame Laura Cox’s report. Typically, these relate to allegations of historic sexual abuse, although not necessarily exclusively.

Of course, there can be little sympathy for anyone who is found guilty of such serious misconduct, including in respect of the public scrutiny they face. Being ‘outed’ removes the cloak of respectability, encourages other ‘survivors’ to come forward and should act as a significant deterrent. However, if only it were always so simple. Someone falsely accused of such serious offences may very well find themselves publicly exposed, where very significant reputational harm will be suffered which will be hard (if not impossible) to undo, even assuming the individual goes on to prove their innocence. That is not to ignore the mental health impact caused by being falsely accused and by untrue claims being widely publicised.

A shift in favour of privacy

As is the case in many countries, alleged victims of sexual offences in the UK are granted anonymity. Defendants are not granted this protection. Those accused of such offences, whether they have been charged or not, whether guilty or not, have long risked public exposure. However, this summer saw the English High Court shift the balance towards the privacy rights of individuals where allegations are yet to be substantiated when the Court found in favour of Sir Cliff Richard in his privacy and data protection claim against South Yorkshire Police (SYP) and the BBC.

As is well known, the case resulted from the BBC's reporting of the police investigation into allegations of a historic sex offence. Following a search of Sir Cliff's property on 14 August 2014, which was broadcast immediately that same day by the BBC and led to very extensive global media coverage, the investigation was abandoned in June 2016 and no charges were ever brought. Sir Cliff reached a settlement with SYP and successfully argued before the High Court that the BBC had engaged in a serious infringement of his privacy rights by reporting on the investigation and the search of his property.

In reaching its decision, the High Court considered other recent cases (including PNM (later Khuja) v Times Newspapers [2017] UKSC 49, ERY v Associated Newspapers[2016] EWHC 2760 (QB)andZXC v Bloomberg [2017] EWHC 328 (QB)) and certain extra-judicial commentary, before concluding that, as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation. The extent to which a media organisation's rights of freedom of expression outweigh any such privacy expectation will be fact-specific. In Sir Cliff's case, the balance came down firmly in his favour, due (in particular) to the consequences of the coverage for someone in his position, the fact that the undeniable public interest in investigations into historic sexual abuse did not extend to identifying Sir Cliff, and the sensationalist style of the BBC's reporting. Furthermore, minimal notice had been provided of the intention to broadcast when set against the intrusiveness of the coverage.

The immense strain and stress that Sir Cliff was found to have suffered because of the BBC's reporting highlights the difficulties faced by the law in dealing with these types of cases. The impact of being falsely accused has undoubtedly been a significant factor in the courts moving towards the conclusion that claims of, and/or investigations into allegations of, criminality can engage an individual's privacy rights. Despite some movement, it remains very difficult to obtain a pre-publication injunction in defamation cases (under the rule in Bonnard v Perryman) and a statutory stay provision exists in data protection cases prior to publication, the law of privacy provides an important protection mechanism. See section 176 of the Data Protection Act 2018, although note that the corresponding provision under the old Data Protection Act 1998 is currently the subject of a referral to the European Court of Justice following the decision of the Court of Appeal in Stunt v Associated Newspapers Limited [2018] EWCA Civ 1780.

Kavanaugh and Ronaldo

The recent news stories involving Brett Kavanaugh (now sworn in to the US Supreme Court) and Cristiano Ronaldo have brought this issue back into the limelight. Whatever the truth of the allegations (and both individuals strenuously deny them), there can be little doubt that Kavanaugh and Ronaldo have suffered long-lasting (probably permanent) reputational damage.

In Kavanaugh's case, the facts were clearly very different to Sir Cliff's case. While the events took place in the US where the First Amendment affords significantly stronger freedom of speech rights to media organisations, on an English law analysis there was a firmer public interest basis for reporting the allegations given the nature of the role that Kavanaugh was about to take and the imminence of the swearing in process. The case is also distinguishable in that the alleged victim of Kavanaugh's conduct, Dr Christine Blasey Ford, spoke out herself. The Court in the Sir Cliff case did not comment on whether he would have had a reasonable expectation of privacy against the complainant. As soon as the public hearing before the Senate Committee took place, there would of course have been no question of privacy remaining in play.

For Ronaldo, his accuser, Kathryn Mayorga, has spoken out through her lawyer, again raising the question of the interaction between the privacy rights of an individual accused of sexual assault and the right of a complainant to tell their story. The tension between these rights (embodied in Articles 8 and 10 of the European Convention on Human Rights) runs through so much of the case law in this area but is particularly marked in this context. Ronaldo's lawyers described the story, which was originally published in Germany by Der Spiegel, as "fake news" (a phrase best avoided given its association with attacking an individual or organisation which holds an opposing view, irrespective of the truth or validity of that view). Ronaldo’s lawyers have said they intend to bring proceedings against the magazine. They have also said that the documents obtained have been fabricated and/or altered following an incident of cyber crime in 2015.

Leaving aside Ms Mayorga's statement, the decision of Der Spiegel to publish the allegations in the first place again raises the issue of when it is lawful to do so in circumstances where the Las Vegas police have only recently reopened the case (and no decision has been taken on whether to press charges against Ronaldo). If one looks to the Sir Cliff Richard case for guidance, it seems likely Ronaldo would have had strong privacy arguments under English law when Der Spiegelfirst published the story.

That said, emphasising the fact-sensitive nature of these cases, the added complication in the Ronaldo case is the existence of a non-disclosure agreement under which Ronaldo paid his accuser a significant six-figure sum. While the case demonstrates the fallibilities of confidentiality agreements (a fact amplified by the increasing scepticism in respect of the use of such agreements in sexual harassment cases as the debate following the recent case involving Philip Green shows), the fact that Ronaldo paid her such a sum is not itself evidence that is necessarily suggestive of his guilt: there could be many reasons why the money was paid.

Uncertainty ahead

The Court’s decision in Richard is important because it has historically been the case that allegations relating to criminal or unlawful conduct are the domain of defamation (where a successful claim is reliant upon the publication being false). The extension of privacy rights to these contexts shows a recognition by the courts that significant reputational damage and distress may be caused by accurate reporting of cases that are in their early stages where the allegations are subsequently shown to be untrue.

That no hard and fast rules have been created underlines the fact that the law faces a significant challenge in grappling with the undoubted overall public interest in the public being made aware of sexual misconduct as against the individual rights of those under suspicion or investigation. The fact that the police’s now general default option is not to name suspects until they have been charged indicates their view on where the division should be drawn.

As a reasonable compromise between the protection of individual rights and maintaining the openness of court proceedings, this strikes a working practical solution. What it does not deal with is the media-led outing of individuals by their accusers, where the police have yet to begin their investigation. In such circumstances, the accused is highly vulnerable to very substantial reputational harm which no subsequent successful judgment or ‘right to be forgotten’ project can ever fully restore. In publishing the allegations first and asking questions later, the media will run the risk of repeating the BBC’s error and it will be an educated guess whether the commercial or editorial value in running the story will out-weigh the legal consequences of being found to have breached the privacy rights of an individual who it later turns out has been wrongly accused.

If you require further information on anything covered in this briefing please contact Thomas Rudkin, or your usual contact at the firm on 020 3375 7000.

This publication is a general summary. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2018

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