No comment – your guide about how to deal with harmful allegations online

In Part 1 of this blog, we looked at the potential risks that arise in commenting on pending or active legal proceedings. In this Part 2, we explore the legal considerations where an individual, whether they are a celebrity or high profile in a particular industry, finds themselves at the centre of serious allegations of criminality or misconduct, and how these might be reported on.

Over the past few months, we have read about several high profile individuals at the centre of allegations that focus around their private life. In some instances, the individual at the centre of the allegations has been identified in the press reporting, and in others, they have been anonymised.

Can allegations of misconduct ever be reported on?

Allegations of criminal misconduct or inappropriate behaviour engage considerations as to the risk to an individual’s reputation (what we refer to as a potential claim in defamation) and an infringement of their right to a private life (particularly where those allegations involve sexual relationships or allegations of sexual misconduct). 

Beginning with the decision in Cliff Richard v BBC, the Courts have held in a series of cases that an individual has a reasonable and legitimate expectation of privacy in the fact that they may be the subject of a police investigation but where no formal charges are brought. That reasonable expectation is not reduced by the fact that the individual may be a public figure. 

Importantly, this is a starting point and each case will turn on its own facts, including the public standing of the individual, the seriousness of the allegation(s) and style of reporting. You can also read about the recent decision in WFZ v BBC here where the Court was asked to consider an application for an interim injunction to restrain the BBC from publishing a report within a news bulletin and programmes that identified the Claimant as the subject of an active criminal investigation. The Court found in favour of the Claimant in that application. 

Any media outlet would need to be confident that there is a public interest in publishing what are often serious allegations, and that they have rigorously investigated the truth of the allegations before going to print, or before contacting the individual. The media outlet may consider how they report on the allegations; is the individual to be identified or should the allegations be reported anonymously. If the publication decides not to name the individual, is it possible that this may lead to widespread speculation, that runs the risk of harming other individual’s reputations, or could they be identified through what is called “jigsaw identification” where enough information is given to enable readers to piece together the individual.

What options are available if I find myself at the centre of an allegation?

The individual at the centre of an allegation may wish to avoid the publication of the allegations, because they are firmly denied or where they feel that they violate their right to private life.  

There are options to engage with the media outlet or to apply for what is called an “interim injunction” to prevent the publication by media outlets. An interim injunction is a short term, immediately enforceable order, which is applied for urgently, where a publication is threatened. It prevents the media outlet publishing its article or television show until the issues of defamation and privacy have been explored more fully at a final hearing and the Judge makes their ruling. In some instances, it is possible to obtain a “super injunction” where even reporting the existence of an injunction is not permitted.

To read more about injunctive relief, please follow our link here: Injunction Relief - JMW Solicitors

What are the risks if I comment online on allegations?

Speculating online could lead to claims in defamation or an allegation that you have infringed an individual’s privacy rights. You could find yourself facing an application for an interim injunction or the threat of a legal claim. We have seen over the last 12 months several cases in the High Court that have centred around online social media posts, ranging from Instagram stories to individual Tweets (now X’s).

Recently Jeremy Vine sued a Twitter user who falsely claimed that Mr Vine was the individual at the centre of allegations published by The Sun about a (at the time) unidentified BBC presenter. Mr Vine accepted an apology and £1000 payment donated to charity. The actual legal costs and damages award that Mr Vine might have been able to recover through the court would likely have been much higher. The case is a warning to those thinking about using their online platform to comment upon allegations.