Cushnahan v British Broadcasting Corporation & Anor

Factual and Procedural Background

The Plaintiff commenced proceedings against the first Defendant, Company A, and the second Defendant, an Editor of a current affairs programme produced by Company A. The proceedings concern several publications by Company A, including the broadcast of two investigative programmes ("Programme One" and "Programme Two") aired in 2016 and available on Company A's online platform for a limited period. The Plaintiff alleges that these programmes impute criminal corruption to him, specifically relating to his roles within an advisory committee ("Committee A") to a national asset management agency ("Agency A") and his alleged receipt of illicit payments from a developer.

The Plaintiff seeks an interlocutory injunction to prevent Company A from rebroadcasting these programmes or broadcasting a further programme ("Programme Three") containing similar allegations. This application arises in the context of an ongoing criminal investigation by a national crime agency ("Agency B") into the sale of a loan portfolio from Agency A to a private purchaser. The Plaintiff is identified as a suspect in this investigation.

The Defendants have applied to strike out the Plaintiff's claim on grounds of abuse of process, arguing that the claim is essentially for defamation protection improperly pursued under other causes of action, and that the Plaintiff lacks the required consent from the Attorney General to bring contempt proceedings under the Contempt of Court Act 1981.

The court initially imposed a reporting restriction order under section 4(2) of the Contempt of Court Act 1981 to facilitate proper consideration of the interlocutory injunction application. The hearing involved detailed submissions from counsel representing both parties and addressed complex legal issues concerning the interaction between contempt of court, human rights, and privacy law.

Legal Issues Presented

1. Whether the Plaintiff is entitled to an interlocutory injunction preventing Company A from broadcasting or rebroadcasting programmes alleging his criminal corruption, on grounds of contempt of court under the strict liability rule or common law, or breach of Article 6 of the European Convention on Human Rights (ECHR) relating to a fair trial and presumption of innocence.
2. Whether Company A qualifies as a public authority for the purposes of the Human Rights Act 1998 in relation to its journalism and editorial decisions.
3. The applicability and interplay of various causes of action invoked by the Plaintiff, including misuse of private information, harassment under the Protection from Harassment (Northern Ireland) Order 1997, and the Data Protection Act 1998, and whether these claims are attempts to circumvent the restrictions on interlocutory injunctions in defamation law.
4. The scope and application of the Contempt of Court Act 1981, including the strict liability rule, the requirement for the Attorney General’s consent to commence contempt proceedings, and the interpretation of "active" and "imminent" criminal proceedings.
5. The extent to which pre-trial publicity may create a substantial risk of serious prejudice or impediment to the administration of justice and the threshold for granting interlocutory injunctions affecting freedom of expression under Article 10 ECHR.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contends that further broadcast of programmes alleging his corruption would constitute contempt of court under the strict liability rule or common law contempt, infringing his rights under Article 6 ECHR to a fair trial and presumption of innocence.
• He asserts entitlement to interlocutory injunctions based on misuse of private information, harassment, and data protection violations to prevent anticipated broadcasts or publications.
• The Plaintiff argues that Company A is a public authority for the purposes of the Human Rights Act 1998 and thus subject to claims under Article 6 ECHR.
• The Plaintiff seeks to restrain any broadcasts relating to his membership of Committee A, involvement in the sale of the loan portfolio, and communications with a developer referenced in the programmes.

Defendants' Arguments

• The Defendants argue that the Plaintiff’s claim is an abuse of process as it is effectively a defamation claim improperly framed under other causes of action to circumvent the strict rules against interlocutory injunctions in defamation (citing Bonnard v Perryman).
• They contend that the Plaintiff lacks the Attorney General’s consent required under section 7 of the Contempt of Court Act 1981 to bring contempt proceedings for alleged past contempt.
• Company A denies being a public authority in relation to its journalism and editorial decisions, relying on case law and the operational independence guaranteed by its Royal Charter.
• The Defendants emphasize the public interest in the investigative programmes, asserting their broadcasts contribute significantly to public debate on matters of substantial concern, including alleged corruption and political influence.
• They argue that the criminal proceedings against the Plaintiff were not "active" at the time of broadcasts and that Company A took care not to publish material during periods when such proceedings were active.
• Company A maintains editorial control and refuses to provide advance scripts of programmes to authorities or parties, consistent with established legal principles protecting journalistic freedom.
• The Defendants assert that the Plaintiff’s harassment claim lacks merit as the publications fall within reasonable press conduct and that the covert recordings were made in compliance with editorial guidelines and legal standards.
• Regarding data protection claims, the Defendants argue compliance with relevant principles and that any alleged unlawful processing by third parties is not a matter for Company A.

Table of Precedents Cited

Court's Reasoning and Analysis

The court conducted a detailed examination of the factual background, legal principles, and evidentiary material. It acknowledged the serious nature of the allegations made in the programmes and the strong public interest in their publication. The court carefully considered the statutory framework of the Contempt of Court Act 1981, particularly the strict liability rule, and the requirement for the Attorney General’s consent to bring contempt proceedings for alleged past contempt.

It found that the criminal proceedings against the Plaintiff were only active between 31 May 2016 and 27 July 2016, a period during which Company A refrained from publishing the programmes. Consequently, the Plaintiff could not establish a risk of contempt under the strict liability rule for anticipated future broadcasts. The court also found insufficient evidence to support a finding of specific intent required for common law contempt.

The court addressed the Plaintiff’s contention that Company A is a public authority but concluded that the Plaintiff had not demonstrated a likelihood of success on this point. This was pivotal because without Company A being a public authority, claims under the Human Rights Act 1998 for breach of Article 6 ECHR could not be sustained against it directly. The court further held that even if the court itself is a public authority, it would not grant an injunction under Article 6 where none was justified under the Contempt of Court Act or common law.

Regarding the misuse of private information claim, the court held that the Plaintiff did not have a reasonable expectation of privacy in respect of the information forming the basis of the complaint, which principally concerned reputation rather than private facts. This claim was struck out as an abuse of process, consistent with the principle that reputation claims cannot circumvent defamation law restrictions.

On the harassment claim, the court found that the publications did not amount to unreasonable conduct or harassment under the statutory test and declined to grant an injunction on this ground. However, the covert recordings aspect was not struck out, reflecting the need for further consideration at trial.

The Data Protection Act 1998 claim was rejected on the basis that Company A had complied with its obligations, including reliance on the journalistic exemption under section 32. The court accepted that the public interest in freedom of expression and the administration of justice were properly balanced in the Defendant’s editorial decisions.

Finally, the court considered the reporting restriction order imposed earlier and found that criminal proceedings were not pending or imminent within the statutory meaning, leading to the discharge of that order subject to a short period for appeal.

Holding and Implications

The court’s final decision was to DECLINE TO GRANT AN INTERLOCUTORY INJUNCTION sought by the Plaintiff.

It struck out parts of the Plaintiff’s claim relating to alleged past contempt of court and misuse of private information but refused to strike out other claims, including harassment and data protection aspects. The reporting restriction order was discharged with a short continuation to allow for appeal.

The direct effect of this decision is that Company A is not restrained from broadcasting or rebroadcasting the contested programmes or similar investigative content, subject to the constraints of the Contempt of Court Act 1981 and common law. The court’s analysis underscores the high threshold for interlocutory injunctions affecting freedom of expression, particularly in matters of public interest journalism and ongoing criminal investigations.

No new precedent was established; the ruling applies the existing legal framework to the facts before the court, balancing rights to a fair trial, privacy, and freedom of expression.