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Manchester Arena suspect had a right to privacy in his arrest but damages for harm to reputation would be an abuse of process

  • United Kingdom
  • Commercial litigation
  • Litigation and dispute management
  • Media

13-05-2021

Abstract: This article reviews Sicri v Associated Newspapers in which Mr Justice Warby awarded a suspect in the Manchester Arena bombing, who was named in a MailOnline article, £88,000 in compensation for infringement of his right to privacy.  The case is notable for the judge’s consideration of whether the damages award should include compensation for harm to reputation. This article first appeared in the Entertainment Law Review Ent.L.R.2021, 32(3), 101-104 and is reproduced with the kind permission of the publisher

Article

A suspect in the Manchester Arena bombing, who was named in a MailOnline article (the “Article”), has been awarded £88,000 in compensation for infringement of his right to privacy[1]. Mr Justice Warby, however, declined to award damages for harm to reputation under Article 8 ECHR, ruling that to do so would be an “abuse of process”, providing welcome judicial guidance on what has long been a bone of contention.

Background

On the morning of 29 May 2017, at around 4.40am, armed police officers broke through the front door of the claimant’s building, and then through the first floor of his flat and arrested him in connection with the Manchester Arena terrorist bombing the previous Sunday. He was innocent. He had been arrested because he had received a telephone call from the perpetrator of the attack, shortly before it. The perpetrator, who was unknown to him, had telephoned to ask the claimant to exchange some money for him in connection with the claimant’s business. The claimant, who described himself as “a very social person” who was “living a very normal life for a young man”, was detained for seven days by the police, during which he was repeatedly interviewed for five hours at a time.

When he was released without charge on the seventh day, he found that while the police press report hadn’t named him, reporters working for the Mail had uncovered his identity and named him as the suspect to MailOnline’s circa 15.6 million readers. The Mail did not cover his release.

The claimant couldn’t go home. He lost his job. He moved home. His mother in Libya suffered a breakdown and his father lost his job. He suffered abuse on social media.

He eventually brought a claim against the defendant publishers of MailOnline. By this stage he was out of time to bring a claim in libel. He brought his claim in misuse of private information and breach of confidence. It was agreed that it was necessary to consider differences between breach of confidence and misuse of private information and that the case could be decided by reference to the latter tort only.

The question for the court was the familiar two-stage test: (1) did the claimant have a reasonable expectation of privacy in his arrest and (2) if so, did the defendant’s rights, fulfilling its role as a public watchdog, outweigh his.

An associated question for the court was: if the claimant was successful in his claim, could he claim damages for harm to his reputation as part of his claim for misuse of private information? The overlap between these separate torts had been debated in previous cases, but the question never quite resolved. Further, what impact did the rule in Dingle v Associated Newspapers Ltd [2] have on damages in a misuse of private information claim?

Reasonable expectation of privacy

The court recited the well known and uncontroversial legal framework for the two-stage test. At stage one, there must be an objective assessment of what a reasonable person of ordinary sensibilities would feel if he or she were placed in the same position as the claimant and faced with the same publicity.

The general rule as far as suspects are concerned is now clear: an individual has a reasonable expectation of privacy in respect of information that they have come under suspicion by the state. It was up for debate in Richard v BBC[3] and has recently been reaffirmed in the Court of Appeal in ZXC v Bloomberg LP[4].

It is why the police had not named the claimant in its press release. At the relevant time, the College of Policing Guidance on Relations with the Media stated: “Suspects should not be identified to the media (by disclosing names or other identifying information) prior to point of charge except where justified by clear circumstances, i.e. a threat to life, the prevention or detection of crime or a matter of public interest and confidence…” and “naming on arrest: police will not name those arrested, or suspected of a crime…

The rationale for the rule is also clear. Disclosure of such information is likely to have a serious harmful impact on a person’s reputation, and thus their private life.

The question was whether the general rule applied in this case, given the nature and gravity of the terrorist atrocity the claimant was suspected of being involved in and the fact that other publications named him. The defendant argued that knowledge of the arrest was in the public domain. It was a “high profile and publicly visible operation”. As the defendant’s witness said: “Intrinsic to my reporting was my belief that someone arrested in a high-profile police operation in the middle of a small town would stand little expectation of privacy given the speed at which a story like this would spread around local residents”.

The court had made clear in the past that there may be exceptions to the general rules. Factors which may defeat legitimate expectation were identified in ZXC. They included the “public nature of the activity under consideration (rioting for example[5]), a decision by the police to release a suspect’s name, or the conduct of a bank robber holding customers and employees hostage in a televised three day siege”.

In Mr Justice Mann’s judgment, the general rule did apply in the circumstances of this case. It did not feature anything close to the factors identified as possible exemptions. The line of defence that the arrest was public, was not borne out by the evidence. It has been carried out in the claimant’s home, in the small hours, with a single member of the public as a witness.

Did the rights of the defendant and others to disseminate and receive information on matters of public or general interest outweigh the claimant’s expectation of privacy?  

Having established that the claimant had a reasonable expectation of privacy in his arrest under Article 8 ECHR, the next question was whether interference with the claimant’s rights could be justified to protect the defendant’s rights under Article 10 ECHR (right to freedom of expression). The decisive question here is what contribution the publication of the relevant information makes to a debate of general interest, noting the essential role played by the press in a democratic society, protected under Article 10.

The judge said it made none (in relation to publication of the claimant’s name). There was heavy criticism for the editorial team who had not turned their minds to the claimant’s privacy rights when deciding whether to name him and for presenting the court with a lawyerly reconstruction of their decision-making process on the day. Their decision had, in fact, been driven by concerns over accuracy rather than privacy, and a knee-jerk, general feeling that suspects should be named. That was the opposite of the legal starting point and not in compliance with the Editor’s Code of Conduct.

The judge also dismissed an open justice argument advanced by the Defence, equating an arrest with the work of the courts, which has to be open and transparent and where the media are the eyes and ears of the public.

While the judge accepted the “interest of the public in being informed about the progress of a high-profile criminal investigation into a major terrorist attack”, this broad formulation did not address the core question of why it was in the public interest to know the claimant’s identity.

The nub of the defendant’s answer to the core question was the importance of names as a way of ensuring reader engagement and the fact that “disembodied coverage…would have lessened the ability of the public to form a coherent understanding of the extent, progress and direction of the investigation”.

While the court accepted that it would make for “livelier copy” to name a person and enhance a publisher’s competitive position to do so, it rejected these considerations as “commercial imperatives” and denied that they trumped claimant’s rights.  

The judge also rejected the suggestion that the decision to name or not name a suspect fell within “editorial latitude”. Editorial latitude was about tone, the technique of reporting and the form in which information and ideas were conveyed. Striking the appropriate balance between Article 8 and 10 rights was a task for the court not editors.

Damages

The court awarded the claimant £50,000 in general damages to compensate him for wrongful disclosure, the consequent loss of status, distress, anxiety and other emotional harm that this caused and £33,000 in special damages to cover his expenses in having articles naming him removed from the internet following the judgment.

The interesting aspect of the damages award was the discussion around whether it could include compensation for harm to reputation. The claimant relied on Richard v BBC as authority for the proposition that it could and the defendant on Nicklin J’s ruling at first instance in ZXC v Bloomberg[6] (ZXC1) to support the opposite conclusion. The judge considered both and his own judgment in Aven v Orbis Business Intelligence[7] in which he awarded damages for reputational harm in a data protection claim.

In conclusion, Warby J considered that neither Richard nor ZXC1 was authority for the broad proposition that a claimant could or could not recover damages for reputational harm in privacy cases. The ratio was narrower than that, but, he said [at 163], “I would, if necessary, hold that damages for injury to reputation are not available in a claim for misuse of private information. A claimant who wishes to recover such damages must sue in defamation.” In the present case however, “I can decide the issue in this case on the narrower basis that it would not be just, in all the circumstances, to award compensation for reputational harm”. The judge said he would need to consider concepts such as the meaning of the words and could not do that on the basis of the statements of case as they were. Nevertheless, [at 166]: “In all these circumstances, I believe that a claim for compensation in respect of reputational harm is – in the technical sense – an abuse of process.”

Having seemingly shut the door on an award of damages for reputational harm in a privacy action, the judge went on to award damages to the claimant for the impact of the Article on his “dignity” or “standing” and distress resulting from that. He acknowledged that the distinction was difficult to draw in practice, but said it was real.  The Article led or contributed to the claimant’s public status becoming a deeply undignified one: he became in the eyes of millions, the 23-year-old Libyan trainee pilot who had been arrested and held in custody under suspicion of involvement with the Manchester terrorist attack. This caused others distancing themselves – shunning him – regardless of what they took to be the truth of the matter.

The court also considered whether the rule in Dingle applies in the tort of misuse of private information. The claimant had relied on it to support his claim for damages for all harm to reputation which the claimant had suffered, whether or not it could be evidenced that it flowed directly from the claimant’s publication (or some third-party publication). The judge rejected this interpretation. The ratio in Dingle was that a defendant to a claim in defamation may not rely in mitigation on other publications to the same or similar effect to prove that the claimant had a pre-existing general bad reputation. The rule in Dingle did not relieve the court of the duty of “isolating” the damage caused by the defendant tortfeasor from any other harm that others may have caused to the same interest of the claimant.  The defendant was accordingly not liable for the damage or distress caused by the claimant’s family learning of his arrest as a result of local reports, based on sources other than the defendant’s article.

Comment

The events surrounding the claimant’s arrest and the consequences of its becoming known to the wider world elicit great sympathy. The development of the law of privacy to provide the claimant with a remedy is, however, unsatisfactory. The notion of privacy, as commonly understood, is the right to be left alone; that there are some matters that are no one’s business but your own. It must seem peculiar to a lay person that an arrest by the police of a suspect falls within that sphere of protection. The rationale is clear but equally unsatisfactory. An arrest is deemed private because its becoming known causes the suspect harm to his or her reputation. The reason it causes harm to reputation is that the public, it is accepted, believe the maxim that there is “no smoke without fire” rather than that a man is “innocent until proven guilty”.

The principle that there is, as a general rule, a reasonable expectation of privacy in an arrest is problematic. The act of an arrest itself cannot be classed as private, since the police are at liberty to report on the act of it. It is the identity of the suspect which is deemed private. This is a peculiar dissection of the act and the actors. The line of authorities seems to place weight on where the arrest occurs.

The results are arguably absurd. An arrest may be deemed private if it happens in a cockpit, but not in the cabin of a plane. If it happens in the tent of a beer festival but not in the suspect’s home. It is surely unsatisfactory that something as important as a right of privacy should depend on something as arbitrary as where the police decide to read you your rights, in your home or on the street. Here, the arrest happened in the claimant’s home, but not before armed police had broken through the front door of the claimant’s building and his flat – at 4 o’clock in the morning, waking the neighbours.

This dissection of the act and the actors is also problematic given that the right of privacy belongs only to the suspect, who is only one of the actors in the act. What of the policeman who cuffs him? The same act – two actors involved in it. One able to assert privacy in the act but not the other.

The judge noted here that it may be too much for a person arrested at his home to expect his neighbours to stay silent and not gossip amongst themselves about what they have witnessed, and yet entirely reasonable for that same person to expect that a media publisher will refrain from reporting his identity as a suspect online, in permanent form, to tens of millions of strangers. This acceptance that the suspect has a right of privacy in relation to some but not all people suggests the right of privacy is not related to the act itself, nor the actor (whether the suspect or the policeman) but is more akin, after all, to breach of confidence – the ability to control who knows and speaks of an act and limit it to a sphere of persons. The judge referred to the decision in ETK v News Group[8]: “…there is potentially an important distinction between information which is made available to a person’s circle of friends or work colleagues and information which is widely published in a newspaper.”

The judge dismissed the defendant’s argument equating the work of the police with the work of the courts – which should be open and transparent. There are, however, important public policy reasons why the act of depriving someone of their liberty, however short (and here it was for seven days) should be made public and the identity of persons detained should be known. It cannot be desirable to be a nation in which police vans arrive in the night, take citizens away and the act is deemed private.

The ruling in respect of the award of damages for harm to reputation is, however, a welcome clarification. This is the first case to consider the issue in some detail (albeit that the ratio in this case was still decided on the narrower point that the statements of case would not allow a determination). The difficulty with awarding damages for harm to reputation in privacy actions arises as a result of the court’s recognition that reputation is an aspect of private life. Those rights appear, however, to be at polar opposites: the first relating to one’s intimate sphere and the second relating to one’s public persona; the reputation which one has in the eyes of others. The courts will continue to grapple with these issues. 

 


[1]    Alaedeen Sicri v Associated Newspapers Limited [2020] EWHC 3541 (QB) (21 December 2020)

[2]    [1964] AC 371

[3]    [2018] EWHC 1837 (Ch), [2019] Ch 169

[4]    [2020] EWCA Civ 611, [2020] 3 WLR 838

[5]    In re JR38 [2015] UKSC 42 [2016] AC 1131 the Supreme Court held that taking part in a street riot was not an activity that constituted an aspect of private life that engaged the protection of Article 8, although it concerned a child

[6]    [2019] EWHC 970 (QB) [2019] EMLR 20

[7]    [2020] EWHC 1812 (QB)

[8]     [2011] EWCA Civ 439