Even if the identity of the scandal-hit BBC presenter is never disclosed, the damage has already been done

How do you drag back into private something which has gone viral and become common knowledge? Media law expert David Banks explains the consequences

The bravado of the Twitter mob may diminish in the cold light of day when the post or email arrives with a letter before action telling them they are about to be sued for libel (PA Wire)

You wonder whose sigh of relief was the biggest when the Metropolitan Police asked for investigations into the BBC to be paused.

Revelations continue to unfold about the unnamed presenter – now accused of breaking lockdown rules to meet an online date, according to The Sun, while also under pressure from high-profile colleagues such as Jeremy Vine to step forward and “reveal himself”.

The BBC, the presenter at the centre of it all, or The Sun – all had taken their turn as the focus of the social media mob that has contributed to the extraordinary nature of this story.

A few years ago it would have unfolded in a very different way. If The Sun was confident of its sources, and evidence, the presenter would have been unveiled on its front page (as well as 4, 5, 6 and 7) and that would have been the end of that, barring any action in a libel court that might ensue.

Now privacy has intervened in the progress from tip-off to red-top splash, and those under investigation for potential misdeeds often have a “reasonable expectation of privacy” while the investigation proceeds.

There is an irony here in that one of the cases that established this right to privacy involved the BBC, after it flew a helicopter over the home of Sir Cliff Richard during a police search. The police inquiry came to naught, Sir Cliff was never arrested, or charged, but, devastated by the BBC’s coverage, he took them to court for breach of his privacy.

The BBC argued that an investigation into a household name, a national treasure like Sir Cliff, was a matter of public interest. That argument foundered in the High Court and as well as receiving £2m in damages, Sir Cliff established a principle which has, up until now, protected the identity of the BBC presenter in the middle of all this.

The Sun might also have had libel in mind when it published its splash. If it had identified the presenter then it would have been open to them to sue the paper in a libel action that could well result in hundreds of thousands in damages and costs. Anonymising the piece prevents such a case because among the three things a claimant in libel must show is that they have been adequately identified by the publication.

The complication in all of this, as we have seen since the weekend, is social media. The moment that The Sun splash hit its website and the newsstands the hunt was on for who this presenter might be. It became a test of who, in the minds of those guessing, instantly summed up the BBC. Though they will hardly see it this way, the presenters who found themselves being named by those speculating on Twitter were being delivered a backhanded compliment – they are the ones who sum up the BBC in people’s minds, they’re the public face of the corporation.

While national newspapers and broadcasters, conscious of privacy law, were avoiding any hint of the presenter’s identity, social media users were exercising no such constraint. We saw the usual disinhibition take hold – everyone is naming names, so why shouldn’t I? And the subject being the BBC, everyone has an opinion.

I think the low point for those who know the law came when one Twitter user posted a poll, inviting followers to guess who the presenter might be, including a list of possible names – all of whom could claim to be libelled (although whether Hacker T Dog has the legal personality to sue is one for legal academics to mull over).

Several presenters wrongly accused protested their innocence and demanded that posts be removed, and when they were met with hostile responses from the posters, they replied saying the matter was now in the hands of their lawyers. The bravado of the Twitter mob may diminish in the cold light of day when the post or email arrives with a letter before action telling them they are about to be sued for libel.

Of course, this is all after the event. The damage has been done and distress caused. Social media has irrevocably changed the landscape for libel and privacy actions. It is worth your while suing a newspaper or broadcaster, but what is the point of suing someone for libel if they do not have the means to pay damages and costs? How do you drag back into private something which has gone viral and become common knowledge?

There will be mutterings about making the platforms more responsible for what is posted on them, but a reality check is needed if we think that has any chance of working. Meta launched Threads last week, with the ambition of it becoming a billion-user platform. Something that size is not practically policeable.

Since the weekend we have seen the mob, or a different subsection of it, turn its attention to The Sun in the wake of the statement by the young person involved dissociating themselves from their parents’ complaint. I say this more in hope than expectation, but before we rush to judgement, perhaps pause; I think there will be more twists to this tale before we get to the truth, if we ever do.

David Banks is a media law trainer & consultant