Background
There have been several new stories in the last year reporting the arrest of professional footballers for complaints of sexual offences. The most recent example was first reported in the Telegraph on 4 July 2022. The article reported that a “Premier League international footballer” had been arrested in North London on suspicion of rape. The player in question was not named “for legal reasons”; however, the article contained information about the player which enable him to be identified, including his likely age, international profile and the fact he is due to play at the World Cup in Qatar this year. The article also reported that it was unclear he would participate in his club’s pre-season fixture schedule. The article also reported the location where the player had been arrested.
On 5 July, the Telegraph reported the player was further questioned by police over separate complaints of alleged attacks on different woman last year. Then on 14 July 2022, the Telegraph reported the player’s employer and club were refusing to suspend him. A statement from the club was reported, in which the club said they were aware of the allegations that were currently the subject of a police investigation and there had been no charges made and the player would fulfil his professional commitments, including permitted travel. The club also said they were following safeguarding policies and procedures, would keep the matter under close consideration and review further if the circumstances changed. The article reported the club could also not be named “for legal reasons”. The position developed on 28 July 2022, when the Telegraph reported that one of the three allegations of rape had been dropped by the police but that the player remained under police investigation for the remaining two allegations of rape.
In addition to the Telegraph’s stories, reporting of this story has been carried out by various other publications. Despite the media’s reluctance to identify the club and the player, there has been a wealth of discussion on social media about the identity of the player in question, which includes identifying possible individuals based on the information that has been reported so far. Various names of Premier League players based at football clubs in North London have been associated with the story and yet, there has been no official confirmation as to the player’s identity. This raises important legal questions that are addressed below.
Privacy
Following the Leveson Inquiry, in which the practices of police forces releasing details of investigations to the press were scrutinised, Lord Justice Leveson’s report into the culture, practices and ethics of the press (published 29 November 2012), endorsed the view that “save in exceptional and clearly identified circumstances (for example, where there may be an immediate risk to the public), the names or identifying details of those who are arrested or suspected of a crime should not be released to the press or public.” (See Volume 2, G2.39). This recommendation has since been adopted by the College of Policing (the professionally body who provide police officers with the skills and knowledge necessary for effective policing) the Independent Office for Police Conduct (IOPC), which oversees the police complaints system in England and Wales and is the position of the current UK Government – on 16 March 2021 the then Parliamentary Under-Secretary of State for Justice, Lord Wolfson of Tredegar QC, confirmed that the Government’s position on the matter was “in principle and in general, there should be a right of anonymity pre charge in respect of all offences”.
Since the Leveson Report, there has a wide range of judicial consideration as to whether a reasonable expectation of privacy exists for suspects in a criminal investigation over the publication of their identity. This is an aspect of privacy law that has developed rapidly in the last few years. The Supreme Court of England & Wales confirmed the position in ZXC v Bloomberg [2022] UKSC 5, stating that “as a legitimate starting point, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation” [146]. The decision accepted the principles that had been set in a series of cases adjudicated in the High Court, where claimants had brought privacy claims after publication of the fact they were under investigation or of interest to a criminal investigation (see e.g. Hannon v News Group Newspapers Ltd [2015] EMLR 1, Richard v BBC [2019] Ch 169 and Sicri v Associated Newspapers Ltd [2021] 4 WLR 9).
ZXC confirms publishers are no longer able to report freely on the early stages of a criminal investigation as they are not able to report the identity of a suspect until they have been charged. This development of the law of privacy concerning the naming of suspects in police investigations reflects current public opinion, as seen in a poll conducted by YouGov in 2018, where 83% of respondents held the view that a person, who had been arrested for questioning about a crime but had not been charged, should be entitled to privacy. However, the legal principle, in the words of the Supreme Court, is considered a “legitimate starting point” but not an irrebuttable legal presumption nor a legal rule. The determination as to whether there is a reasonable expectation of privacy is a fact-specific enquiry. In Richard v BBC, Mr Justice Mann held a reasonable expectation of privacy in relation to a police investigation may be displaced by factors such as a police decision to release information for legitimate operational concerns or for reasons of public safety [at 251].
The now established “legitimate starting point” applies to all publishers, which includes users of social media, however given the unregulated nature of social media, this has not prevented any discussion on social media platforms about the possible identity of the player (and for the purposes of the following discussion) whether they committed the acts complained of. In the case of Twitter, the contents of such discussions have led to certain players names ‘trending’ as popular topics, which has aggravated the disclosure of possible private information. That ‘trending’ does not of course, as a matter of law, entitle the media to publish that speculation and to do so would put them at significant risk legally.
Defamation
At the time the story first broke and with each subsequent update, social media has been dominated with discussion about the identity of the footballer in question. Those who have speculated about the identity of the alleged assailant could face the threat of a libel claim by anyone alleged to have committed these serious offences. Publishing statements online about the allegation and naming a player can be a dangerous game, especially given the allegation concerns a most serious criminal offence. Libel actions can be difficult to defend, especially as the burden of proof will fall on the Defendant to prove what they have said was either true, an honestly held opinion, published on a public interest matter or privilege.
Reporting on high profile people arrested for sexual offences can therefore be a dangerous business. News publishers will be advised by their legal counsel to ensure a proper balance between the public interest in a transparent criminal justice system, the privacy and reputational rights of the complainant and the suspect and the integrity of the criminal process. Each of these rights are protected by law and the guidance on achieving the correct balance is often not difficult for professional publishers. However not everyone with a social media profile has the benefit of the expert advice of an editorial newspaper lawyer and there is real risk that social media users, without the benefit of specialist legal advice, enter a minefield when discussing (where they will be considered in law as reporting) police investigations into sexual offences. Indeed, even referring to someone as ‘trending’ on Twitter in similar circumstances has led to successful libel actions being brought.
There have been other examples of this type of online behaviour. On a separate occasion, in July 2021, it was reported on the basis of a police statement that a 31-year-old Premier League footballer had been arrested on suspicion of child sex offences. The player’s identity was not reported by this country’s press. A Premier League football club then released a statement on their website, announcing it had suspended a first team player pending a police investigation. The club did not confirm whether it was the same player who had been arrested on suspicion of child sex offences, but the timing of the statement led to significantly large discussion online about who the player was and identifying several names of players at the Club in question, who matched the identifying information (such as the age of the suspect) with the allegation. In addition, several foreign publications chose to report the story identifying one of the players rumoured to have been arrested. That of course does not mean that UK publications are free to do so as privacy law is intended to protect people from intrusion as opposed to maintaining secrecy. It is not known whether the player in question is still under investigation.
Contempt
A third dimension to this story is the law of contempt. The publication of information that raises a substantial risk of serious prejudice or impediment to the course of justice in proceedings, which will be heard by a jury (e.g. a criminal trial), is capable of being in contempt of court. This is known as the strict liability rule (as set out in s.1, Contempt of Court Act 1981) and will apply once proceedings are ‘live’, which in the law of contempt, takes place once a person has been arrested (see Schedule 1, Contempt of Court Act 1981 and Sicri v Associated Newspapers Ltd at [100]). The law is in place to avoid comment and publication leading to a trial being delayed or stopped completely because a fair trial cannot take place. This may avoid deterring future complainants from coming forward if they feel there is risk substantial comment online could prevent their complaint being properly determined in a court of law.
Publishers will need to take care to avoid criminal liability for contempt if they publish anything to create a substantial risk of serious prejudice to criminal proceedings. If a publisher was found in contempt, they may face a substantial fine and possibly imprisonment.
The case of Christopher Jefferies is relevant here. In late 2010, Mr Jefferies was arrested on suspicion of the murder of Joanna Yeates in Bristol. He was found to be wholly innocent. However, in the meantime and after his arrest, he faced extensive media coverage of a prejudicial kind. Some of this was found to be in contempt of court and the Court imposed substantial fines on Mirror Group Newspapers (£50,000) and News Group Newspapers (£18,000) for their respective reporting of the arrest in the Daily Mirror and the Sun newspapers (see Attorney General v MGN Ltd [2011] EWHC 2074 (Admin)). There were also numerous successful libel actions brought on his behalf against a number of media outlets.
The strict liability rule applies to publications, including those on social media given these are publications addressed to the public at large (see s.2, Contempt of Court Act 1981), which means anyone discussing online the arrest of this player and what may or may not have happened face the risk of contempt of court. This continues to be an ongoing issue and has forced the Government to post warnings to social media users of the legal consequences of prejudicing the judicial process.
Comment
It is unlikely this will be the last incidence where a high-profile footballer finds themselves under investigation by the police for sexual offences allegations. What is clear however, is that there is an established set of legal principles in place that means identifying anyone as a possible suspect could have serious legal ramifications, both in the criminal context but also in the civil courts.
There is also a separate reputational issue here, which is how the player’s employer deals with the investigation. In the past year there have been at least four examples in which neither club has adopted the other’s approach. In one example, a player was suspended from playing after he had been charged with sexual offences (reporting of the criminal trial indicates he continued playing after his first arrest). He has since been charged with further counts of rape, attempted rape and sexual assault. He is currently on trial and has pleaded not guilty to eight charges of rape, one of attempted rape and one of sexual assault, relating to six complainants [1]. In another example, a Premier League player was accused of assault against a woman in a series of posts on her social media. The allegations were accompanied by video, photographs and voice notes and were deleted shortly afterwards. The difference to the current story is that the player in question was identified, firstly on social media and then by the press, before being suspended by his club and then arrested on suspicion of rape and assault of a woman. The player has since been further arrested on suspicion of sexual assault and making threats to kill and was released on bail pending further investigation and has not been charged [2]. The player has lost sponsorship deals as a result of being identified as a suspect. What this demonstrates is that a football club should also take legal advice about the likely impact on their reputation in such situations. Either the club’s association with a player in question or, their actions in response to such allegations, may cause damage to the club’s own reputation.
The question for the player in question now is can they continue to play while online discussions continue. As the new Premier League season begins, it is inevitable that opposition fans will become aware of the rumours and use this to target any player who might be identified as the suspect. This raises questions about whether suspects should be entitled to statutory anonymity. Anyone who has reported sexual assault or rape to the police is entitled to an automatic lifelong right to anonymity, which prohibits the publication of their name, address and any image of them (see s1 of the Sexual Offences (Amendment) Act 1992). There is no such statutory right for suspects in a criminal investigation, which is currently the subject of a campaign led by Sir Cliff Richard (the Claimant in the successful privacy claim against the BBC referred to above) and Paul Gambaccini, both of whom were the subject of criminal investigations into historic sex crimes that received widespread attention before any formal charging decision was made.
We have experience of acting for individuals seeking to protect their identity in criminal investigations and our specialist team can assist in advising about the merits of your case. Equally we have experience acting for publishers and can assist in advising you about any reporting of criminal investigations. The Hamlins Media Disputes team has considerable expertise in taking legal action under privacy and data protection laws. If you would like to find out more about how Hamlins can help you, please get in touch.
[1] In September 2022 it was reported that this player had been found not guilty of one count of rape. The trial is currently ongoing in which the player now faces seven counts of rape, one count of attempted rape and one count of sexual assault against six women. In January 2023, this player was found not guilty and cleared unanimously of six counts of rape and one of sexual assault. The player will face a second trial after the jury was unable to reach verdicts on one charge of rape and one of attempted rape.
[2] In October 2022, it was reported that this player had been charged with attempted rape, engaging in controlling and coercive behaviour, and assault occasioning actual bodily harm. A trial was set for November 2023. In February 2023, the CPS announced its decision to discontinue prosecution and the player will no longer face criminal proceedings.
