You can see it from Cliff Richard’s point of view. He has planned a pleasant day with friends and family near his villa in Portugal. The phone rings; back in the UK, the police have raided his home in connection with an allegation of paedophilia and the BBC is going to town with helicopter footage of the bust. Two years later, during which he feels broken, humiliated and shunned, there have been no charges. In the eyes of the law, he is innocent. He wants to teach the BBC and the police a lesson. It is an act of retribution, but it’s also a case that he hopes will establish guidelines for the future, so that no one else should suffer as he did.
You can also see it from the BBC’s point of view. One of Britain’s most famous pop stars is suspected of assaulting an underage teenager at a Billy Graham rally in Sheffield in the 1980s. The police have already put Rolf Harris, Stuart Hall and Max Clifford behind bars. The story – that Richard is being treated as a suspect – is undeniably true. A judge has given the green light for a search. Why on earth not report it?
Enter Mr Justice Mann, a 67-year-old Oxford graduate who has sat in the high court since 2004. To him falls the burden of deciding between the 77-year-old pop star and the national broadcaster. Over 900-odd numbered paragraphs, he forensically dissects the case, doing his best to balance Richard’s rights to privacy with the BBC’s claims to free expression. He comes down firmly on the side of Richard. The singer, who has already collected £410,000 from South Yorkshire police for their apparent collaboration with the BBC, is awarded £210,000 in further damages – with potentially more to follow.
In an age of struggling economics for the news business, such swingeing fines feel like just one more damned nail in the already battered coffin of investigative journalism. But it’s not just the money. Here’s a judge apparently saying that, in future, an individual’s privacy rights trump any supposed public interest in openness. Imagine not being able to write about Harvey Weinstein for fear of hurting his feelings or damaging his reputation. Where would the #MeToo movement have been without the slow domino effect of one woman after another coming out into public, each one reinforced by the example and bravery of others? In Mr Justice Mann’s world, Weinstein would surely have had a safe harbour.
And yet, whatever you think of his eventual conclusions, Mr Justice Mann’s judgment is a more carefully reasoned, balanced and nuanced text than some of his immediate detractors allow. He evidently felt some distaste for the over-the-top relish with which the BBC attacked the story. But journalism is – often – a messy and imperfect craft. Subject editorial processes to a cold legal eye – with time, discovery, documents, hindsight and money – and the result is often slightly excruciating. Here’s a reporter hot on the scent of a scoop. He exchanges ill-advised emails with his superiors. Helicopters are hired. Rivals are thrown off the scent. The victim is given a pitiful amount of time to respond.
And for what? Four years later – and with no charges – it all looks “breathless” and “sensationalist” (as Mr Justice Mann suggests). The background mood today is less about Jimmy Savile and Gary Glitter and more about how the Met – and some news organisations – were so easily fooled by a complainant (ironically granted the pseudonymous cover of “Nick”) who has now been charged with 12 counts of perverting the course of justice.
One of Mr Justice Mann’s former judicial colleagues, Sir Richard Henriques, has since (in 2016) recommended that any suspect should have the right to anonymity prior to arrest. That may seem, in common sense, “fair”, but how does that sit with the so-called Weinstein ripple effect? And where does the Richard judgment leave newsrooms? Have some sympathy for the BBC and the particular microscopic scrutiny it faces. An error of judgment on the Today programme is rewarded with a full-fig 328-page Hutton report. A failure to investigate Savile is dissected over 185 pages of the Pollard review. And now there are 95 painful pages on Richard. Damned if you do, damned if you don’t.
Lawyers and editors will be alarmed by the creeping use of privacy and data legislation. Had this been a libel case, the BBC could at least have pleaded its reporting was true. But justification is no defence to a claim of intrusion into privacy.
Many journalists will shake their heads at the implications. Does this mean that, in future, it’s OK to report on historical sexual abuse cases – but only if you don’t name the suspect before charging? Does this apply to globalised social media as well? Will readers of British newspapers be kept in the dark about allegations freely discussed online and around the rest of the world?
That feels like the wisdom of Canute. But it is also true that, for a generation or more, too many British journalists operated as though privacy was an un-British concept that had to be resisted at all costs. As a former News of the World feature writer told the Leveson inquiry: “Privacy is the space bad people need to do bad things in. Privacy is for paedos; fundamentally, nobody else needs it.”
The Cliff Richard case marks the end of that mindset. It would be a dangerous day for free expression if the wealthy could routinely buy freedom from scrutiny through the courts. Equally, some news organisations will need to rethink some outdated attitudes to privacy.
I feel Mr Justice Mann may have tilted the needle too far from the fresh air of free expression, but his judgment is an uncomfortable reminder that journalism has consequences.
Alan Rusbridger, a former editor in chief of the Guardian and the Observer, is principal of Lady Margaret Hall, Oxford. Breaking News, his new book, is published in September