WFZ v BBC: The right to privacy in the context of police investigations

In the recent decision of WFZ v The British Broadcasting Corporation [2023] EWHC 1618, the judiciary showed willingness to step in to protect Article 6 (right to a fair trial) and Article 8 (right to privacy) rights over Article 10 rights (right of freedom of expression) in the period prior to charge in the context of a police investigation.

The decision shows that at least as a starting point, the right to privacy (which now clearly includes a right to reputation) between arrest and charge as established in ZXC v Bloomberg LP [2022] AC 1158 extends much more broadly than it was perhaps thought before. Whilst this is likely to be considered helpful from a reputation management perspective, it raises significant concerns in relation to freedom of expression and the extent to which there remains scope to report on individual conduct which is subject to an ongoing police investigation prior to charge.

The case was heard by Collins Rice J in private due to the exceptional circumstances of the case and the nature of the interim injunction sought by WFZ against the BBC. We therefore only have access to the public version of the judgment.

Background and judgment

Briefly, WFZ, a very well-known individual, sought an interim injunction against the BBC to prevent it from publishing his name in a series of articles and other media about an investigation into serious sexual misconduct in a particular industry.

The publications by the BBC were due to assert that the BBC had found that (i) at least a quarter of businesses in the sector in which WFZ works had employees investigated for serious sexual offences; (ii) the sector was without appropriate policies or procedures for employees in such circumstances; and (iii) there was an inconsistent approach to dealing with allegations.

The BBC intended to refer to WFZ in its publications as a case study to draw attention to the underlying matters and to bring the story to life. The BBC had spoken to several women who made allegations of sexual misconduct against WFZ. He had also been arrested and questioned in relation to a number of sexual assault allegations and the BBC intended to report that WFZ had been investigated and arrested in respect of these allegations.

WFZ received a “Right of Reply” letter from the BBC advising him of the intended publication and the investigation, and WFZ sought an urgent interim injunction. 

Collins Rice J granted the interim injunction to restrain publication chiefly on the grounds of contempt of court. She found that there was a “substantial risk” of serious impediment or prejudice to any subsequent criminal proceedings and administration of justice if the BBC were to publish the series of articles with reference to WFZ and that this would sit in conflict with Article 6 rights to a fair trial.

Collins Rice J emphasised in particular that the proposed publications were likely to lead to an uncontrollable media frenzy that would in and of itself impact on the conduct of the police investigation, WFZ’s right to a fair criminal process and trial, obtaining justice for complainants, the willingness of witnesses to give evidence and public trust in the criminal system. She referred to the destructive effect of publication on the prospects of justice and took the view that the powerful public interest in criminal justice outweighed the public interest in freedom of the press.

Collins Rice J noted that if she had not been satisfied that publication would be in contempt of court, she would have been satisfied that WFZ would likely establish that publication would amount to a misuse of his private information. She found that the starting point of a right to privacy prior to charge, as established in ZXC v Bloomberg, applied, and the circumstances of the case did not displace that right.

The BBC sought to distinguish the position from ZXC v Bloomberg. It highlighted in particular that:

• the information for the publications had been obtained legitimately through discussions with the complainants of sexual assault and its own investigations, rather than from the police or their investigation and/or in breach of confidence; and
• the investigation by the BBC had been separate from the criminal investigation by the police.

Collins Rice J was clear on this point, stating that she had “no hesitation in adopting the ZXC ‘starting point’”. She acknowledged that the BBC obtained its information either from the complainants or its own investigations, the complainants had the right to tell their stories and there was public interest in the story, both in terms of the prevalence of misconduct within the sector and that other women might be alerted to potential risks. However, she considered that WFZ had a reasonable expectation of privacy in the information which outweighed the right to freedom of expression, noting, in particular, that WFZ had a “high public profile and can expect exceptionally intrusive consequences” and that publication would result in a “serious invasion, if not the destruction, of [WFZ’s] sexual privacy”.

The BBC was therefore prevented from identifying WFZ in its publications. It could either report without reference to WFZ or delay publication until after the outcome of charging decisions.

Innovations in the judgment

The judgment involved two important innovations. 

Firstly, it established that there was a right for an individual to restrain the publication of material which could subsequently prejudice his own criminal trial. This is highly controversial. A committal for strict liability contempt under section 2 of the Contempt of Court Act 1981 is almost invariably brought by the Attorney General. It is inconceivable that such a committal would be brought by the defendant in criminal proceedings. It is thus odd that this form of strict liability contempt is the foundation for a privacy claim brought by the individual. That is not least because presumably, the individual’s concern is not actually in safeguarding his subsequent criminal trial at all, but in protecting his reputation in the meantime. 

Moreover, there would appear to be a significant flaw in the reasoning for this. The criminal trial which was ostensibly being safeguarded would arise only after the individual had been charged (you cannot have a criminal trial without a charge) and the charging would have to be in open court. It is true that at the point of charging there are reporting restrictions in place which regulate the range of information which can be published and these restrictions are typically closely respected by the media. However, the concern of the judge did not seem to relate to any specific item or items of information to be broadcast, but rather the inevitable volume of the reporting. One could surely expect just as much volume of reporting when the individual was charged. On the judge’s analysis, any trial would be at risk of prejudice from the wave of reporting arising at charge, wholly regardless of the BBC’s proposed publications at this earlier stage.

In reality, in contempt cases like this, judges tend to be much more robust, confident that a properly directed jury can disregard outside reporting and consider only the evidence presented in court. That is doubtless the approach they would take in respect of the reporting in and around charge. It is surprising that the judge did not take the same approach.

Secondly, ZXC v Bloomberg and Richard v BBC [2018] EWHC 1837 established an important principle in relation to the reporting of criminal investigations, i.e. that the starting point is that there is a right of privacy in respect of such investigations and that the reporting of them can be justified only if there is a sufficient public interest. It was thought that that principle applied only to the reporting of the investigation and the BBC in this context was not principally reporting on the police investigation. The BBC had conducted its own investigations and had its own witnesses who could tell their own stories and make their own allegations against the individual. That puts the reporting much more in the traditional category of reporting. The legal consequences of such reporting would be typically seen in the context of defamation and whether the steps taken by the journalists were sufficient to avail themselves of the public interest defence. For such a situation to now fall within the scope of ZXC v Bloomberg privacy – because there also happened to be a police investigation in parallel and despite the fact that investigation was not the focus of the reporting – is an important extension of the ZXC principle.

What is the impact?

The circumstances of the case and decision to grant the interim injunction were fact-specific, but the decision appears likely to have wide-ranging consequences for journalistic reporting. As it stands, the principle of privacy pre-charge seems to apply much more broadly than we may have first thought – or hoped – at least from the perspective of freedom of expression. It may now mean that there is limited scope for journalists to publish any story about criminal allegations against an individual where there is an ongoing police investigation prior to charging decisions, even if information was obtained independently of the police investigation and there is a significant public interest in the story.  

It also perversely means that someone subject to serious allegations is in a much stronger position to protect his or her reputation if there also happens to be a police investigation and that journalists may be disincentivised from reporting wrongdoing to the authorities.

Finally, the suggestion that a media organisation delay publication at least until the outcome of the charging decision is problematic. Such decisions are not made public and may never be made known to the media (the individual in question is hardly likely to tell them). There is a substantial danger that a privacy injunction granted on this basis will remain in effect for perpetuity.