The decision of whether to name someone who has been arrested is one that editors have to grapple with most days. I get more legal queries about this than anything else.
The problem is libel.
If the arrested person is not subsequently charged, they can sue any publication that named them, for the damage done to their reputation.
If they do, the publication must prove that there was conduct on the person’s part that gave rise to suspicion.
This is hard to prove, as the paper must have its own evidence. It is not sufficient to argue that the police – or someone else – knew about the person’s suspicious conduct. Even a tip from a friendly cop that a charge is certain may turn out to be wrong.
So most editors have to work out:
1. The likelihood of the person being charged, and,
2. The likelihood of them suing for libel if they’re not.
It can be expensive if you get it wrong.
The most famous example was the arrest of Chris Jefferies on suspicion of murdering Joanna Yeates in December 2012.
Many newspapers named him, and then published a series of defamatory articles about him. But he wasn’t charged, and he successfully sued eight national papers. He also gave evidence to the Leveson Inquiry about the damage the media can do to an innocent person.
His evidence played a big part in Leveson calling for a ban on naming arrested people.
Editors face big decisions when celebrities are arrested. The pressure to name big names is enormous, especially when rival publications and broadcasters are doing do.
Publicist Max Clifford, and comedian Jim Davidson are recent ‘victims’. And footballers Andy Cole, Cristiano Ronaldo and Jonny Evans are among a string of historic examples. None of them were charged.
And of course, as you read this, a well-known 82-year-old celebrity arrested as part of the Jimmy Savile investigation has not been named by the media, although it doesn’t take long to ID him on the internet. So far, his lawyers have kept the lid on his identity by issuing dire threats of libel action.
The Daily Mail believes that an outright ban on naming arrested people would be a threat to open justice and herald ‘secret arrests’.
My view is that the existing laws of libel are a sufficient deterrent. The Jefferies case proves that. A blanket ban would be yet another instance of prior restraint on the media, and damaging for free speech.
Cleland Thom is a consultant in media law