Privacy for suspects under investigation – Bloomberg LP v ZXC
Last Wednesday, 16 February 2022, the Supreme Court ruled against Bloomberg LP in a landmark privacy case holding that, as a legitimate starting point, a person under a criminal investigation has a reasonable expectation of privacy in respect of information relating to that investigation.
This was a long running claim, which arose as a result of Bloomberg’s publication of an article in 2016, relating to details of a criminal investigation by a UK Law enforcement body (“UKLEB”), involving the activities of X Ltd in a particular foreign state for which ZXC’s division was responsible. The information contained in the article was taken from a confidential Letter of Request issued by the UKLEB seeking mutual legal assistance from the foreign state. The criminal investigation began in 2013. ZXC had neither been arrested for nor – importantly – charged with any wrongdoing.
ZXC brought a claim under the tort of misuse of private information arising out of the publication of the article, and sought damages and injunctive relief. Following a trial before Nicklin J, the claims were upheld and damages of £25,000 was awarded (ZXC v Bloomberg LP  EWHC 970 (QB)).
The Court of Appeal dismissed Bloomberg’s appeal (ZXC v Bloomberg LP  QB 28) and upheld the High Court’s judgment, confirming that an individual who is being investigated by a law enforcement agency has a reasonable expectation of privacy in the facts and details of that investigation up to the point of charge.
The Supreme Court Appeal:
The three issues which arose on this appeal were whether:
- The Court of Appeal erred in holding that there is a general rule that a person under criminal investigation has – prior to being charged – a reasonable expectation of privacy in respect of information relating to that investigation.
- The Court of Appeal erred in holding that in a case in which a claim for breach of confidence was not pursued, the fact that information published by Bloomberg about a criminal investigation originated from a confidential law enforcement document rendered the information private and/or undermined Bloomberg’s ability to rely on the public interest in its disclosure;
- Whether the Court of Appeal erred in upholding Nicklin J’s findings at first instance, namely that the claimant had a reasonable expectation of privacy in relation to the published information, and that the article 8 versus article 10 balancing exercise came down in favour of ZXC.
Bloomberg in bringing the appeal argued:
- The public’s ability to observe the presumption of innocence meant that the Court’s application of a starting point in favour of a reasonably expectation of privacy overstated the extent to which publication would cause damage to the subject’s reputation.
- The reliance (in the High Court and Court of Appeal) on our tendency as humans to equate suspicion or investigation with guilt – ‘no smoke without fire’ – ran contrary to established principles of defamation law that the ordinary reader can distinguish suspicion from guilt.
- Article 8 extended only to a person’s private life rather than their reputation as part of their business activities.
- The Courts below failed to apply the correct test.
The Supreme Court analysed carefully the two-stage test in Murray v Express Newspapers plc  EWCA Civ 446 used to ascertain whether there has been misuse of private information, focusing only on stage one – whether the claimant had a reasonable expectation of privacy in the relevant information, taking into account all the circumstances of the case.
The Supreme Court held that in answering the question at stage one, a Court should begin with the starting point that a person under criminal investigation, prior to being charged, had a reasonable expectation of privacy in respect of information relating to that criminal investigation; characterised by Simon LJ in the Court of Appeal as ‘the legitimate starting point’. This was analogous to certain other categories of information, such as information concerning the state of an individual’s health, which is widely considered to give rise to a reasonable expectation of privacy.
This led the Court to the conclusion that a claimant objectively has a reasonable expectation of privacy in information within that category. At paragraph 144 of the judgment the Supreme Court held that
“…. in respect of certain categories of information, such as the information in this case, a consideration of all the circumstances and the weight which must be attached to a particular circumstance will generally result in a determination that there is a reasonable expectation of privacy in relation to information within that category. In respect of those categories of information it is appropriate to state that there is a legitimate starting point that there is a an expectation of privacy in relation to that information.”
The rationale for such a starting point is that the publication of information of this nature causes substantial damage to reputation, which on occasion can be irremediable.
The burden rests on the claimant both to set out and to prove the circumstances establishing that there was objectively a reasonable expectation of privacy. Once established the Court should then commence its analysis by applying the legitimate starting point. The Court should then consider by reference to all the circumstances of the case whether the reasonable expectation either does not arise at all or was significantly reduced. If the expectation is reduced, it will bear on the weight to be attached to the article 8 rights at stage two.
Bloomberg argued that the legitimate starting point was unsound because it underestimated the public’s ability to observe the legal presumption of innocence. Additionally, Bloomberg asserted that an incorrect legal test had been applied, that stage one required consideration of all the circumstances of the case and the application of the legitimate starting point gave pre-ordained weight to one circumstance, namely, the effect on the claimant. The Supreme Court rejected these submissions at paragraph  stating the legal presumption of innocence is applicable in criminal trials and that the context in this case was different. “In this context the question is how others, including a person’s inner circle, their business or professional associates and the general public, will react to the publication of information that that person is under criminal investigation… that a person’s reputation will ordinarily be adversely affected causing prejudice to personal enjoyment of the right to respect for private life…”.
Therefore, the notion of private life may include activities of a professional or business nature; applying to those in the public eye, such as this claimant who was a businessman actively involved in the affairs of a large public company. Whilst it was recognised that the limit of acceptable criticism of such a person are wider than those in respect of a private individual, that does not mean that there is no limit. The private nature of the information that has been or is to be published, must be balanced against the effect of publication of the information on and the attributes of the individual.
The Supreme Court also ruled that Article 8 ECHR encompasses a ‘reputational’ dimension [paragraph 125], which although is principally protected by the tort of defamation, is also protected by the tort of misuse of private information if the claimed harm attains a certain level of seriousness.
The Supreme Court highlighted notably that:
- This ground of appeal only related to the stage one test and even where the information is characterised as private it would still be capable of being published if outweighed at stage two by the countervailing interest of the publisher’s article 10 rights.
- If someone is charged with a criminal offence there can be no reasonable expectation of privacy and the open justice principle generally means that the information is of an essentially public nature.
- The appeal was confined to the impact of information derived from an investigation by an organ of the state. This strongly suggests that if the information had derived from Bloomberg’s own investigations (as opposed to reliance on a confidential document issued pursuant to Mutual Legal Assistance agreements) that different considerations would apply.
The Supreme Court held, that the Court of Appeal had correctly distinguished the difference between what is confidential and private information. It held that whilst there is an overlap between confidential and private information that the judge was right to place reliance on the public interest in the observance of duties of confidence when carrying out the balancing exercise, at stage two. “In the present case, there was a general public interest in the observance of the duties of confidence and a specific public interest in maintaining the confidence of the letter of request so not to prejudice the criminal investigation” . The Court of Appeal was correct to treat the confidentiality of the information as being a relevant and important factor at stages one and two of the test, but confidentiality was not treated as determinative and therefore, there was no error of law.
This ground of appeal was dependent on Bloomberg establishing that the Court of Appeal erred in law on issues one and two. The Supreme Court in dismissing this ground of appeal held that as no error of approach was shown in issues one and two, there were no grounds to interfering with the judge’s decision in relation to the balancing exercise at stage two.
While the judgment necessarily impacts on the media’s ability to report names and details of those who are suspected of criminal activities or under criminal investigation, it provides some comfort for private individuals who are the subject of those investigations and demonstrates that the judgment recognises the substantial reputational damage that may be done to an individual when it is reported in the press that they are the subject of a criminal investigation. The fact that the investigated wrongdoing may relate to the person’s business life – as opposed to their private life – does not provide sufficient excuse to remove Article 8 protection. However, it would be wrong to characterise this decision as being one which silences a free press. The judgment at first instance treated the confidential nature of the letter of request as being a relevant and important factor at both stage one and stage two of the test. The fact that Bloomberg had provided no evidence at first instance as to the alleged assessment of the public interest by those who made the decision to publish did not help their case, and the duty to confidentiality substantially weakened arguments as to the public interest in publication. The judgment is not authority for the proposition that the press may never publish that an individual is under investigation, but where the detail of the investigation has come from a confidential source the balance falls, for now, in favour of the private individual’s Article 8 rights.