Sir Cliff Richards v BBC: is publicity the soul of justice?

Sir Cliff Richards v BBC: is publicity the soul of justice?

You don’t have to be a privacy or media lawyer to have heard of the sex abuse allegations levied against celebrities in the entertainment industry over the last few years. The investigations concerning Sir Cliff Richard, a famous British musician, included a widely-televised raid on his estate in Berkshire by South Yorkshire Police. Nearly four years after the BBC first named and shamed Sir Cliff in what is now considered to have been “sensationalist” journalism, the High Court has determined that his rights of privacy were infringed.

What makes this case so interesting is that it does not focus on defamation —that is, the publication (or voicing) of a statement which adversely affects another person’s reputation. Instead, Sir Cliff won his case on the basis that the BBC’s wrongful disclosure of his private information was an invasion of his privacy. 

In Sir Cliff Richard v BBC and South Yorkshire Policethe Court considered if suspects who have not been formally charged by police have a reasonable expectation of privacy in respect of the criminal investigation. How are an individual’s rights to privacy balanced against the freedom of expression enjoyed by media organisations? That the suspect in this case is a celebrity only complicates matters, as it calls into question the importance publishing private details in the name of public interest.

Prosecutors said in 2016 that there was not enough evidence to justify criminal charges against Mr. Richard, one of Britain’s best-known entertainers, with a career spanning some 60 years. However, the BBC stands by their reportage of the allegations, and I suspect the BBC will indeed appeal this decision.

As if written for the stage, the Justice Mann’s 120-page judgement begins with a summary of key characters and the plot as it unfolded…

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Daniel Johnson, in front of Sir Cliff’s Berkshire estate

Daniel Johnson, an investigative journalist for the BBC, received a tip-off from a police insider in June 2014 that Sir Cliff was under investigation for historic sex offences against a child. In a manner some would consider blackmail, Johnson “exploited the opportunity to get confirmation of his story about Sir Cliff, and more details if possible” from the South Yorkshire Police (SYP). In exchange for Johnson not publishing the story immediately, the SYP promised that he would be given advance notice of the search of Sir Cliff’s estate. The raid was eventually conducted in August 2014, with BBC crew waiting at the gates and helicopters hovering overhead to capture the whole ordeal.

In case you’re wondering where the Beeb’s lawyers were, the BBC held a meeting to discuss whether to name Sir Cliff and when to broadcast. In her testimony, Senior Editor Fran Unsworth explained that “the legal risk was diminishing because they had got a lot of confirmation of the facts of the story”. The principal legal concern seems to have been in respect of factual accuracy and defamation, and not privacy – as “the lawyers had not flagged that up to her as a specific risk” (para 111).

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the (not very exciting) footage shows plain-clothes police entering Sir Cliff’s estate.
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Three gloved individuals appear to be looking through what is likely Sir Cliff’s office

The legal framework of Sir Cliff’s privacy claim is enshrined in European Convention on Human Rights, brought into force in the UK by the Human Rights Act 1998.

Article 8 sets out the right to privacy: “Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law […] or for the protection of the rights and freedoms of others.”

Article 10 upholds the BBC’s competing rights of expression: “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society [including those] for the protection of the reputation or rights of others.”

In instances where which both Article 8 and Article 10 are engaged, the Court has to perform a balancing and weighing act to ascertain which predominates. Neither article has prima facie precedence over the other.

Article 8 privacy protections arise only where an individual has a reasonable expectation of privacy. For example, if I have a conversation with my friend in a crowded coffee shop in central London, I cannot reasonably expect our discussion to be protected as truly private.

The 77 year-old singer told the Court that he suffered an “unbelievable amount of hurt and pain” after the BBC broadcast the allegations that he had sexually assaulted a boy in 1985. “It felt like torture, sustained over almost two years. It felt as though everything I had done, everything I had built and worked to achieve, was being torn down, like life itself was coming to an end.”

But one might wonder if, as a celebrity, Sir Cliff cannot claim to have an expectation of privacy. A certain amount of emphasis was given by the BBC to the fact that Sir Cliff was a public figure, and one who had promoted his Christian beliefs. Because Sir Cliff had been so vocal (ie public) about Christian morality, the BBC considered that his alleged sexual crimes against a child qualified as a matter of public interest. To that point, the Court acknowledged that in certain special circumstances, the public’s right to be informed can extend into private aspects of public figures (para 276).

However,  Rocknroll v News Group Newspapers [2013] EWHC 24 (Ch) upheld that a public figure is not, by virtue of their fame, necessarily deprived of his or her legitimate expectations of privacy. Axel Springer v Germany 39954/08 [2012] ECHR 227 also makes clear that the safeguard afforded by Article 10 to journalists is subject to the proviso that they are acting in good faith and on an accurate factual basis, and that they provide “reliable and precise” information in accordance with the ethics of journalism.

In considering the BBC’s argument that the stories about Sir Cliff had been published in the public interest, the Court disagreed, saying that reporters at the BBC “were far more impressed by the size of the story and that they had the opportunity to scoop their rivals.” (para 280) This echoes the findings in Axel Springer, in that photographs and commentary which expose a person’s private life cannot be considered to have been published in the name of public interest, if they were in fact made public only to “satisfy the curiosity of a particular readership” (Axel Springer, para 48). It is unsurprising in my view that Justice Mann “came to the clear conclusion that Sir Cliff’s privacy rights were not outweighed by the BBC’s rights to freedom of expression” (para 315).

Publicity is the very soul of justice. In the darkness of secrecy, sinister interest and evil in every shape, have full swing. Only in proportion as publicity has place can any of the checks, applicable to judicial injustice, operate. Where there is no publicity there is no justice.

Jeremy Bentham. legal and social reformer (1748 – 1832)

Will this case have a chilling effect on media freedoms? Writing for The Guardian, Professor of Financial Journalism Jane Martinson argues that “as long as the media reports accurately – making it clear when a suspect is under investigation for a serious crime, rather than arrested or charged – there should be no bar to the public knowing what is going on.” However, in my view this fails to take into consideration the complexity of public perception. In his concluding remarks, Justice Mann cited “the failure of the public to keep the presumption of innocence in mind at all times” as an aggravating factor against the BBC.

Other criticisms focus on the point that this case provides an undeserved blanket of anonymity to criminals, providing a way to keep allegations against possible abusers secret. Whether or not there is a reasonable expectation of privacy in a police investigation is in actuality fact-sensitive question, and is not capable of a universal answer (para. 237). According to Police Guidance on Relationships with the Media, the names or identifying details of suspects of crime should not be released by police to the press or public, unless special circumstances apply — such as threat to life, the prevention or detection of crime, or a matter of public interest.

The inevitable stigma attached to the extremely serious allegations against Sir Cliff made the invasion of privacy even worse. When an individual’s good reputation is tarnished, even wrongfully, it may never be recoverable. This is especially harmful to celebrities, who rely so heavily on public favour. In my view, Sir Cliff Richards v BBC is not a sweeping new precedent that stifles freedom of the press: it simply restates the statutory protections afforded by the Human Rights Act within the context of already-established European and English case law.

Is Taylor Swift getting a copycat Reputation?

Is Taylor Swift getting a copycat Reputation?

Taylor Swift’s latest music video, Delicate, has been criticised for its obvious similarities to a 2016 Kenzo perfume advert directed by Spike Jonze.

In the Kenzo advert, we see a young woman portrayed by actress and dancer Margaret Qualley at a posh black tie event in a hotel. Looking beautiful in an evening dress but nevertheless seemingly uncomfortable and bored, she quietly slips out of the ballroom to pensively roam the hallways of the hotel alone. What made the advert so memorable was that Qualley suddenly starts a wild and garish dance to an upbeat song. W Magazine lauded the advert as “one of the best perfume commercials of all time,” and the Guardian called itone of the most engaging ads” of the year.

Earlier this month, Taylor Swift released the video for Delicate, the latest single off of her sixth studio album, Reputation. Directed by Joseph Kahn, the video follows Swift as she walks through a glamourous hotel, increasingly fatigued with the attention of the press and her adoring fans. She eventually manages to escape through the corridors and, under the premise of being invisible, performs a bizarre dance routine through the hallways.

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the opening tracking shot in each video shows a beautiful but bored woman in an evening dress, but the similarities don’t end there…

In addition to the plot – in which a bored young woman has a crazy dance party in a fancy hotel – the videos share a colour scheme, choreography, and camera angles. Although Taylor’s dress is blue and Qualley’s is green, both are deep jewel tones and cut a similar, sleeveless silhouette. Twitter users were quick to point out that even the facial expressions of the two women appeared to mirror each other.

Kenny Wassus, New York Magazine’s senior producer of original video, called Taylor’s video “the drunk sorority knockoff” of the original Kenzo advert. Twitter users have been sharing a slew of direct comparisons between the two videos, including:

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“gorilla” dance
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crazy facial expressions
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profile tracking shot of militant stomping

To be fair, there are a few differences. Qualley’s only audience remains the camera, while an “invisible” Swift can dance through crowds. Qualley wears heels, whereas Swift kicks hers off to dance barefoot. Qualley’s performance ends by jumping through a massive logo for the perfume, whereas Swift’s show ends in the rain with her meeting a mysterious person.

The Kenzo advert was a viral success because, as AdWeek explained, “the exuberantly choreographed video was less about technical innovation than about how it changes the way women are portrayed in marketing.” Fans of Swift may therefore be somewhat unnerved that the international pop star, known for being a creative, self-made woman (see Taylor Swift: from saccharine songstress to fearless feminist) has chosen in this instance to be so heavily inspired by another artist’s originality.

Despite claims that Swift’s video is a “blatant rip off”, a Kenzo representative told Dazed that they will not be making a comment on the matter. Accordingly, a lawsuit or formal complaint is unlikely. Taylor Swift’s representation are yet to respond to the criticism.

Delicate is not the first video directed by Joseph Kahn to invite copyright controversy. His earlier project for Swift, Look What You Made Me Do, was compared by many to Beyoncé’s Formation. 

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Swift vs Beyoncé

In my earlier post All the Stars and Constellations, I noted that inspiration is a common and important part of most creative processes. Even the most original ideas borrow from earlier art, expressions, and themes. The question in this instance concerns the grey area between inspiration and copyright infringement. While plagarism can be easy to spot, the Taylor Swift videos present more of a challenge. Remember, copyright law only protects specific expression of an idea, and not the idea itself.

Kenzo and Spike Jonze are unlikely to pursue legal action, because one cannot obtain intellectual property rights for a vibe or feel of a video – or even the “plot” of a woman dancing through a hotel. However, it’s worth noting that this matter is already being heard in the court of public opinion, and the verdict doesn’t seem to favour Swift.

Morality clauses and talent contracts

Morality clauses and talent contracts

As the year draws to a close, most of us will think back on the people and events that shaped 2017. Considered by many to have been one of the biggest stories of the year, it would be difficult to ignore the social (and legal) discourse surrounding the more than forty high-profile men caught in sexual misconduct scandals.

Last month, Netflix removed Kevin Spacey from its hit show House of Cards after Spacey was accused of sexual misconduct. However, Spacey claims Netflix cannot legally fire him because his contract did not contain a morality clause. Similarly, Hollywood producer Harvey Weinstein’s employment agreement may have only a very “loose” morals clause that does not allow for his termination, so long as he pays contractual fines and any costs incurred by his company due to his behavior.

A morality clause is a contractual provision that gives a party (usually a company) the unilateral right to terminate the agreement, or take punitive action against the other party (the “talent,” which is usually an individual whose endorsement or image is sought) in the event that such other party engages in reprehensible behavior or conduct that may negatively impact his or her public image and, by association, the public image of the contracting company (source).

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The Monarchy, Meghan, and Trade Marks

The Monarchy, Meghan, and Trade Marks

Kensington Palace announced this week that Prince Harry and Meghan Markle are officially engaged, and are expected to marry next May. Before we dismiss the celebrations as just another celebrity extravaganza, it’s important to remember that the upcoming nuptials will benefit the economy, too.

This year, the British Monarchy generated £1.77 billion to the UK economy. This includes a £50 million contribution for fictional shows like The Crown and Victoria, which offer a glimpse into the mystique of the Royal family. The figure also takes into consideration £550 million from tourism: in 2016, 2.7 million people visited Buckingham Palace alone.

When William and Kate married in 2011, the British economy was boosted by £2 billion, with £26 million being from Wills and Kate souvenirs and merchandise. Likewise for Harry and Meghan, brands and retailers will want to capitalise on the goodwill and excitement surrounding another Royal wedding. However, certain rules apply to businesses wishing to use images of the Royal family, or their associated symbols and phrases.

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Fame and fortune: how do celebrities protect their image?

Fame and fortune: how do celebrities protect their image?

Famous movie stars and athletes earn big bucks beyond their day job at the studio or stadium. Their image can be used to in a variety of commercial contexts, ranging from endorsements and sponsorships, to merchandising and deals with fashion brands and magazines. Marketwatch reports that on average, signing a celebrity correlates to a rise in share prices, and a 4% increase in sales. After Chanel signed Nicole Kidman in 2003 to promote their N°5 perfume, global sales of the fragrance increased by 30%.

Celebrities today spend a huge amount of time and energy developing and maintaining their public image. But here in the United Kingdom, “image rights” have never been clearly stated in law. So how do celebrities protect and control the publicity associated with their name, image, and brand?

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