Case Analysis: WFZ v BBC: Are fears that the media may be “gagged” in reporting on misconduct well founded?

On 29 June 2023, the High Court handed down its judgment in an application for an interim injunction to restrain the BBC publishing a report within news bulletins and short scripted segments news programmes on the TV and radio, that identified the Claimant (who was anonymised for the purpose of the application by the initials WFZ) as the subject of an active criminal investigation.

In this article we explore whether the decision in WFZ v BBC is an encroachment on the freedom of the press or whether it looks to uphold an individual’s right to a fair trial and privacy.

Briefly, the facts of WFZ are that WFZ is reported to be a high profile, internationally well-known individual. WFZ sought an interim injunction to restrain the BBC from identifying him within a report as the subject of an active criminal investigation into allegations of serious criminal offences, including allegations of sexual misconduct.

On 05 June 2023, WFZ received a “Right of Reply” letter from a BBC journalist advising him that the BBC had investigated allegations of sexual misconduct made by several women against him.

WFZ sought an urgent interim non-disclosure injunction, and an interim order was made pending the hearing of the interim application before Collins Rice J on 14 June 2023.

The application for an interim injunction was heard in private, the Judge being satisfied that the circumstances of the application were “exceptional” and that it was “strictly necessary” to sit in private to secure the proper administration of justice, and not defeat the purpose of WFZ’s claim.

The legal framework within which WFZ’s application was considered was (a) misuse of private information and (b) contempt of court and the right to a fair trial (article 6 of the ECHR).

What did the BBC wish to publish?

The proposed broadcast content would have included that the BBC had found that at least a quarter of businesses in the sector that WFZ works have had employees investigated by the police for serious sexual offences, but the sector was without policies or procedures for employees accused of violence against women to be addressed and that there was an inconsistent approach to dealing with when allegations were made. WFZ was intended to be used as a case study, and the BBC would report that he had been investigated, arrested in respect of allegations, and his employer was aware of the position and had taken no action. 

The BBC intended to identify WFZ by name and at least the allegations made by one complainant. The Judgment records that the BBC intended to include an outline in broad terms of the allegations of sexual misconduct but not to publish “extensive or graphic detail”. The BBC said that this was to enable the public to understand the nature and seriousness of the alleged behaviour.

Had there been any reporting on the ongoing investigation?

It was common ground the WFZ had been arrested in 2022 on suspicion of a serious sexual offence, and the police released a statement to the media identifying the offence but not WFZ. WFZ was later arrested on suspicion of two further serious sexual offences against a second woman, and bailed shortly after. The police also issued a third statement when WFZ was interviewed under caution in relation to a third complaint. The Judgment records that a decision to investigate a fourth allegation had not been made, and further allegations not formally notified to the police.

The BBC accepted in it opposition to the application for an interim injunction that it was seeking to depart from its previous position not to name WFZ; a position that had been followed by other media outlets.

At the time WFZ’s application for an interim injunction came before the Court, no charging decision had been made. 

It must be noted that WFZ denies the allegations.

Article 6 – right to a fair trial and Contempt of Court

Article 6 of the ECHR guarantees everyone’s rights to a fair trial. The Contempt of Court Act 1981 creates a strict liability offence of contempt if a publication interferes with the course of justice, or creates a substantial risk that the course of justice in “active” proceedings will be seriously impeded or prejudiced.

The judgment in WFZ discusses that the “substantial risk” of serious impediment or prejudice to the course of justice includes a potential defendant’s right to fair criminal procedural and a fair trial, as well as the public’s right and trust in a fair criminal procedure and a complainant’s right. Importantly, when considering the contempt provisions the Judge also took account of the public’s and complainants’ rights to a fair criminal procedure, including the expectation that in reporting matters to the police a defendant will face formal justice and that their voices are heard “properly, fully and fairly…and without advance jeopardy”.

The judgment discussed that the potential vilification of an individual under investigation is a potential impediment. The judgment discussed well known cases involving at least two other individuals who had wrongfully been identified as the suspect in serious criminal incidents and the devastation caused to their lives as a result. Wrongfully identifying a potential suspect may deter or discourage witnesses from coming forward to provide information helpful to a suspect in their defence, or how a jury is directed.

Whilst the Court acknowledged that there may have been online speculation about WFZ’s identity, the Court acknowledged that the BBC naming WFZ would be a “substantial gamechanger” by a “professional and edited national platform”.

To the criminal standard, the Judge was satisfied in WFZ that the proposed publication (as identified by the BBC) would risk seriously impeding or prejudicing the course of justice, and such a risk was substantial and manifest, and those risks could not be mitigated.

What is a right to privacy and how was it engaged?

In the alternative, the Judge held that had she not been satisfied that the publication of the proposed material would be in contempt of court, she would have been satisfied that WFZ could show at trial that publication would be a misuse of his private information.

A right to privacy was established in the decision of the House of Lords in Campbell v Mirror Group Newspapers Ltd. The case set out a two stage test: does a claimant have a reasonable expectation of privacy in the relevant information? If so, is that expectation outweighed by a defendant’s freedom to publish? Whether a claimant has a reasonable expectation of privacy will take account of the circumstances of the case, and what have come to be known as the “Murray factors” after the Court of Appeal decision in Murray v Express Newspapers PLC, that the Judge explored in WFZ.

WFZ is not the first case to come before the High Court that has considered issues of privacy where an individual is under criminal investigation. The starting point is that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of the information relating to that investigation. This principle was confirmed by the Supreme Court decision in ZXC v Bloomberg. The Supreme Court recognised that “the harm and damage can on occasions be irremediable and profound” if publication of the fact that an individual is under criminal investigation is permitted. That does not mean each case will not have its own unique considerations that the Court will weigh in the balance, but the principle acts as a starting point.

Does the Judgment prevent any reporting?

No, the Judge was quite clear that it was available to the BBC to publish its report now without identifying WFZ or to delay the broadcast and await the outcome of charging decisions. The Judgment weighs in the balance the risk to the criminal process of a publication identifying a suspect, and the eventuality that it could also prevent complainants seeking proper redress. It is important to also emphasise that the situation may very well change, and the decision to grant an interim injunction was fact specific. The outcome could be different, if, for instance, the police were to conclude the investigation and formally charge WFZ.