The balance between privacy and public interest
Judith Thompson 12-07-2023
Speculation has been rife about the (so far unsubstantiated) allegations concerning a BBC presenter, subsequently confirmed by his wife to be Welsh journalist and newsreader Huw Edwards, made by the mother of a young person to The Sun newspaper.
The presenter is alleged to have paid the (then) teenager £35,000 for sexually explicit images.
In an interview with the tabloid, the young person’s mother claimed she had discovered a picture of the presenter ‘sitting on a sofa… in his underwear’ on her child’s phone. It was, she suggested, a ‘picture from some kind of video call’ and looked like he was ‘getting ready for my child to perform for him’.
Certainly, if Mr. Edwards contrived to obtain sexually explicit images of a young person when they were under the age of 18, then a criminal investigation is likely to take place, since someone under 18 cannot consent to engaging in what the law refers to as ‘indecent photographs.’
So why did the presenter, in the face of serious allegations, remain unnamed by the media until his wife revealed his identity?
So far, despite the Sun’s assertion that it has ‘evidence’ supporting the mother’s concern, there is, in fact, no hard evidence of wrongdoing. In fact, the lawyers representing the young person at the centre of the story have disputed the mother’s account of events, describing it as "rubbish" and the Sun's reporting as "totally wrong".
The mother has responded to contradict this view. Subsequently, further accusers have come forward with allegations against the presenter.
The story remains, however, largely a collection of speculation and innuendo.
Do I have a right to privacy?
In this country, the law recognises that we all possess a ‘reasonable expectation’ of privacy.
Since a major Supreme Court ruling in February 2022, that right to privacy encompasses even those who are under investigation by a law enforcement agency - before they have been formally charged with a crime.
(On the 16 February 2022, the Supreme Court ruled against Bloomberg LP in a landmark privacy case holding that, as a legitimate starting point, a person under a criminal investigation has a reasonable expectation of privacy in respect of information relating to that investigation.)
The BBC news presenter story is complicated by the fact that the lawyers representing the young person have stated that their client is also subject to an invasion of privacy. The young person could, if named, take legal action.
Is accusing someone of a crime slander or libel?
Stating publicly that someone has committed a criminal offence when they have not, is likely to cause harm to their reputation, meaning they could bring a claim for slander or libel.
Any person or persons wrongfully accused in this matter, overtly or by innuendo, could suffer reputational damage, which could lead to a claim for defamation, and would be justified in seeking legal reparation.
Numerous BBC presenters - Rylan Clark, Gary Lineker, Jeremy Vine and Nicky Campbell, to name only a few – have been forced to distance themselves from the speculation raging on social media platforms after being inaccurately named on Twitter.
What is the public’s right to information?
The issues raised involve two competing (qualified) rights under the European Convention on Human Rights (ECHR):
- Article 8: The right to respect for private and family life (which gives rise to the right to privacy); and
- Article 10: The right to freedom of expression (which gives rise to the public's right to information).
A two-stage test for balancing these competing (and qualified) rights was set out in a 2008 court case, McKennitt v. Ash  QB 73 (CA):
Stage 1: Does the individual have a reasonable expectation of privacy in the relevant information?
Stage 2: If such a reasonable expectation exists, an enquiry and evaluation should be undertaken to establish whether that expectation is outweighed by a countervailing interest (such as the public’s right or need to know).
In this instance, however, the lack of hard evidence and, so far, of a police investigation, perhaps suggested circumspection would remain the most sensible course.
Huw Edwards’ wife Vicky Flind named him as the presenter at the heart of what the tabloids call the ‘£35 K sex pics scandal’ in a statement explaining he is in hospital suffering “serious mental health issues”, and requesting privacy for her family. Clearly she and her family are entitled to that privacy under the law.
Has your privacy been breached?
If you have been publicly named and shamed as a criminal, when you have done nothing wrong, you may be able to bring a claim for compensation against the person who has wrongly identified you.
If you have concerns about breach of your ‘reasonable expectation of privacy’, or matters concerning your reputation, contact the team at Samuels for expert advice.
Article credit: Lalla Merlin