See-saw

Mr Justice Mann's balancing act.

"I have come to the clear conclusion that Sir Cliff’s privacy rights were not outweighed by the BBC’s rights to freedom of expression. This is an overall evaluative exercise which is not a precise scientific measuring one.....

"Last under this head I deal with a very broad point raised by Mr [Gavin] Millar[BBC QC]. He submitted that the case against the BBC raised “issues of great, arguably of constitutional, importance for the freedom of the press in this country.” If Sir Cliff’s claim were successful it would undermine the long-standing press-freedom to report the truth about police investigations (respecting the presumption of innocence), and if that freedom is undermined then that should be a matter for Parliament and not the courts.

"I think that Mr Millar may have been overstating the constitutional importance of this case a bit. I agree that the case is capable of having a significant impact on press reporting, but not to a degree which requires legislative, and not merely judicial, authority. The fact is that there is legislative authority restraining the press in the form of the Human Rights Act, and that is what the courts apply in this area. That Act will have had an effect on press reporting before this case because of Article 8, and the balancing exercise between Articles 8 and 10 is done by the courts under and pursuant to the legislation. The exercise that I have carried out in this case is the same exercise as has to be carried out in other, albeit less dramatic, cases. If the position of the press is now different from that which it has been in the past, that is because of the Human Rights Act, and not because of some court-created principle."

On the £190k general damages: "I have borne in mind that awards of damages are not to be such as to have a chilling effect on the right of freedom of expression. I do not consider that an award of that amount should have a chilling effect of the kind which is to be avoided. A claimant is entitled to proper compensatory damages and the figure I have specified is a proper figure for that purpose. I do not consider that it requires any modification on the footing that such figures would have a chilling effect on the exercise of a newspaper’s right of freedom of expression. It is not an excessive figure; there is no punitive element; it is a genuine compensatory figure; the reason that the story existed as a story was because information was acquired in breach of a right of privacy in the first place, and then confirmed by less than straightforward means by the BBC’s reporter; and it was entirely the decision of the BBC to present the story at all, and then to present it as it did. One of the main motivations of the BBC was the excitement of its scoop. None of that requires any modification of damages otherwise properly payable to Sir Cliff on the basis that responsible journalism would be disincentivised (chilled). "

On the extra £20k: "The submission of the broadcast for an award (which it did not win) does properly fall for separate treatment. It is quite understandable that a broadcasting organisation which first infringes privacy in this way, and then promotes its own infringing activity in a way which demonstrates that it is extremely proud of it, should cause additional distress (which it did), both by demonstrating its pride and unrepentance and to a degree repeating the invasion of privacy with a metaphorical fanfare. Ms Unsworth expressed the view that it was not a good idea to have submitted the broadcast, and she was right about that (she was not asked for her views at the time), and I think it right that this very unfortunate event should be treated as aggravating the damage caused (which it did). It should attract a claim for aggravated damages which I treat separately and in respect of which I award an additional £20,000."