Establishing a right to privacy in Australia: What would it look like and how would it work?

Sir Cliff Richard's overwhelming success in his recent battle with the BBC and the South Yorkshire Police in the High Court of England and Wales (Richard v British Broadcasting Corporation [2018] EWHC 1837(Ch)) (Richard v BBC) indicates that recognising a tort of privacy in Australia could have potentially troubling consequences.

On 14 August 2014, the BBC commissioned a helicopter to hover over Sir Cliff Richard's home in Sunningdale, Berkshire. It recorded what would turn out to be a highly publicised raid and search of his home by the South Yorkshire Police (SYP) in relation to allegations against Sir Cliff relating to an incident of child sexual abuse at a Billy Graham rally in the 1980s.

How the BBC came to know the time and location of the raid, and its decision to record and publicise it in such a prominent way, has been the subject of a 454-paragraph decision by his Honour Mann J in the High Court of England and Wales, handed down on 18 July 2018.

In his decision, Mann J roundly criticised nearly every aspect of the BBC's conduct in the lead-up to and following its report of the raid, and made some concerning conclusions about how the operation of the tort of privacy—which exists as part of the common law of the United Kingdom pursuant to the European Convention on Human Rights and the Human Rights Act 1998 (UK)—might affect press reporting of criminal investigations in the future.

In this article, we take an in-depth look at the judgment itself and the novel conclusion that it makes in relation to whether information about a person being the subject of a criminal investigation would ordinarily be covered by the tort. We also look at what the concerning consequences of that conclusion are, both in the United Kingdom, and, if a tort of privacy was to be developed here, in Australia as well.

RICHARD V BBC: A CLOSER LOOK

How the BBC learned of the investigation and the raid

Justice Mann found that, in June 2014, BBC journalist Daniel Johnson received an anonymous tip-off about a police investigation into Sir Cliff arising from Operation Yewtree, the name given to a group of investigations of historic child sex abuse being conducted by the Metropolitan Police.

Following the tip-off, Mr Johnson approached SYP media officer Carrie Goodwin and explained to her that he knew SYP was investigating Sir Cliff. Then, in circumstances that were hotly contested between the BBC and SYP, the SYP agreed to provide Mr Johnson with certain information about its investigations, including when and where it would be conducting a raid of Sir Cliff's home.

The BBC's decision to publish

Armed with this information, the BBC commissioned a helicopter and recorded vision of SYP officers entering the premises and searching it, including by capturing footage, using a telephoto lens, of officers in the process of rifling through Sir Cliff's belongings.

The BBC then published 44 television broadcast stories which identified that Sir Cliff was the subject of the investigation and detailed that the investigation related to allegations of child sexual abuse which were said to have occurred during a Billy Graham rally. Many of the broadcasts included either the helicopter footage or footage of a BBC reporter stationed near Sir Cliff's vineyard in Portugal, where the BBC believed he was located at the time. The BBC also broadcast headlines confirming that Sir Cliff was the subject of a historical sexual abuse investigation in its rolling 'news ticker' on its television news channels across the UK.

Before publishing its stories, the BBC approached Sir Cliff's PR team for comment, but apparently did not provide them with sufficient details about the story to enable the PR team to decide whether to respond to the BBC or not. Sir Cliff's chief PR consultant, Philip Hall, gave evidence to say that he did not want to communicate with the BBC because he believed they were trying to coax information out of him to support its story. Had the BBC told him that the raid was about to occur, or about the involvement of SYP more broadly, Mr Hall...