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Putting a Price on Privacy: An Update

on Thursday, 26 July 2018.

Those involved in the healthcare sector often hold highly sensitive information. If this were released to third parties, civil action may follow.

Following on from last year's article, this article examines the recent case of Sir Cliff Richard vs. BBC and its possible impact of privacy and data breaches, particularly on the healthcare sector.

While it may not be immediately apparent why a rock star's privacy has relevance to the healthcare sector, the quantification of such claims is still very much a moving feast - and it is therefore worth taking note of the outcome of Cliff Richard's High Court case against the BBC.

The Facts

The case related to the BBC's extensive media coverage of a police search of Sir Cliff Richard's property, which was undertaken in connection with an allegation of an historic sex offence. It was subsequently announced that no charges would be brought against Sir Cliff and that he was therefore innocent in the eyes of the law.

Sir Cliff brought a claim against the BBC for breach of his right to privacy / misuse of his private information and breach of the Data Protection Act 1998 (as it then was). 

The High Court awarded Sir Cliff damages totalling £210,000, with £190,000 of this being attributed to damages for the privacy breach itself. 

What Does This Mean in Practice?

The award in this case was exceptionally high given the status of Sir Cliff and the very specific facts of the case, and the Court acknowledged this. It also acknowledged that there were no useful comparables to assist with the calculation of damages, and this remains the case. However the judgment does contain some helpful guidance that serves as a reminder of the factors that the Court may take into account when awarding damages for breach of privacy, namely:

  1. damages can and should be awarded for distress, damage to health, invasion of privacy (or depriving the claimant of their right to control the use of their private information), damage to dignity, status and reputation;
  2. the general adverse effect on the lifestyle of the claimant;
  3. the nature and content of the private information revealed;
  4. the scope of the publication; and
  5. the presentation of the publication.

Best Practice

The Sir Cliff Richard vs. BBC case is likely to add to the heightened public awareness of privacy / data breach claims which, in our experience, is resulting in an increased number of claims being brought against organisations, particularly in the healthcare sector where private and sensitive information is often stored, used and shared. In reality, awards of damages at this level are likely to be confined only to high profile, widely publicised breaches of privacy cases such as the Sir Cliff Richard vs. BBC, although the law in this area is still very much developing. 

The case serves as a timely reminder of the possible consequences of privacy / data breaches and the need to ensure specialist legal advice is obtained promptly at an early stage to manage the risks involved.

At the time of writing, we understand the BBC are seeking permission to appeal the decision, and we will keep a close eye on further developments.

For more information, please contact Ben Holt on 0117 314 5478 or Sarah Perry on 0117 314 5262 in our Dispute Resolution team.

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