Lexis Nexis Interview: Reasonable expectation of privacy in information relating to criminal investigations (Bloomberg LP v ZXC)

Percy Preston of Brett Wilson LLP is interviewed about the Supreme Court's decision in Bloomberg LP v ZXC [2022] UKSC 5.

What was the key issue on appeal? 

The central issue on the appeal was whether, in general, a person under criminal investigation has a reasonable expectation of privacy in respect of information relating to that investigation.  In a unanimous judgment given by Lord Hamblen and Lord Stephens, the Supreme Court found that in general, a person does have such an expectation.  However, the judgment is careful to emphasise that this was merely a ‘legitimate starting point’ para [144] and not a legal presumption.  The question as to whether there is a reasonable expectation of privacy in relation to this category of information is fact sensitive and should be determined by an evaluation of all the circumstances of a case. The Supreme Court’s decision affirms almost a decade of first instance authority and will be especially welcomed by claimant lawyers.

What are the practical implications of this case?

In rejecting Bloomberg’s appeal, the Supreme Court drew heavily on a series of first instance rulings which have upheld a claimant’s expectation of privacy in circumstances where they were under investigation, but not yet charged, by a state body.  The judgment is, therefore, not a surprise, although claimant lawyers will welcome it as confirming the principle that such an expectation of privacy is the ‘legitimate starting point’ in any individual case.

Though this case primarily concerns the tort of misuse of private information, the court’s acknowledgment that, in the right circumstances, an individual’s right to reputation could be protected by Article 8 will be of interest to defamation practitioners.  In particular, the judgment adds further pressure to the longstanding common law rule in Bonnard v Perryman [1891] 2 Ch 269. Broadly speaking, this rule prevents a claimant from obtaining an interim injunction to restrain publication of an anticipated defamatory statement in circumstances where a defendant sets out their intention to defend the statement as true.  This rule has been affirmed by the Supreme Court as recently as 2019 in Khuja v Times Newspapers [2019] AC 161.  However, the court’s comments in Bloomberg v ZXC add weight to the proposition that there are circumstances where the publication of true but private information about a person is no longer lawful or in the public interest.

Defendant lawyers (and indeed journalists) may fear that the judgment is an unalloyed victory for claimants.  However, the appeal did not concern the publication of information about an individual’s alleged wrongdoing arising from a journalist or news organisation’s own investigations.  Rather, the appeal was concerned with the narrower question of the reporting of a pre-charge investigation into an individual by a state body, a point the Supreme Court makes clear (see, for example, para [78]). This should go some way to alleviating concerns that the judgment represents an undue erosion of the press’ freedom of expression.  Journalists are still at liberty to investigate wrongdoing.

What was the background?

The appellant, Bloomberg LP is, among other things, an international media organisation headquartered in New York.  The news arm of the company is known for its reporting on business and finance.  The claimant brought a claim for misuse of private information over an article (‘the Article’) published by Bloomberg in 2016.  The Article concerned the activities of X Ltd, a publicly listed company for whom the claimant worked as a regional director.  The claimant was named in the Article as being under investigation by a UK Legal Enforcement Body (UKLEB) for a suspected fraud committed in his role at X Ltd.  The Article was based on information drawn almost entirely from a confidential Letter of Request sent by the UKLEB to a foreign state, in which the UKLEB requested assistance with its investigation.

At first instance, Mr Justice Nicklin applied the standard two-stage test for determining whether there had been a misuse of a claimant’s private information.  The judge found that the claimant had a reasonable expectation of privacy in relation to the fact of his being investigated by the authorities.  He then determined, by reference to the public interest in publication, that the respondent’s Article 10 rights to freedom of expression did not outweigh the claimant’s Article 8 rights.  The Court of Appeal upheld the decision at first instance.  Three issues arose on appeal to the Supreme Court:

• whether the Court of Appeal had been wrong to hold that there is a general rule that a person under criminal investigation has, prior to charge, a reasonable expectation of
  privacy in respect of information relating to that investigation.
• whether the Court of Appeal had been wrong to hold 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 had been wrong to uphold the findings of the first instance
  judge.

What did the court decide? 

Most of the Supreme Court’s analysis is devoted to the first ground of appeal and, therefore, to the first stage of the two-stage test for determining whether a defendant has misused a claimant’s private information.  Though the court produced a ranging and comprehensive analysis of this first stage, perhaps the most interesting sections of the judgment concern the relationship between a claimant’s reputation and their privacy.

The court noted that ‘for some time, judges have voiced concerns as to the negative effect on an innocent person’s reputation of the publication that he or she is being investigated by the police or an organ of the state’ [para 80].  Starting with Hannon v News Group Newspapers [2014] EWHC 1580 (Ch), the court surveyed a body of first instance authority to show that the characterisation of this information as private was largely based on the potential for its publication to damage reputation.

Bloomberg objected to this line of authority by arguing, inter alia, that the public was better able to observe the presumption of innocence than these authorities allowed, and that it was wrong to conflate the consequential impact of reputational damage to private life with the question as to whether information itself is private.

The Supreme Court rejected Bloomberg’s arguments.  One of the so-called Murray factors for assessing whether information attracts a reasonable expectation of privacy (derived from the eponymous case Murray v Express Newspapers plc [2008] EWCA Civ 446) is the effect of the publication of the information on the claimant.  If such information is published, a person’s reputation ‘will ordinarily be adversely affected causing prejudice to personal enjoyment of the right to respect for private life’ (para [108]).  Furthermore, the court found that Bloomberg’s characterisation of the protections afforded by Article 8 was unduly narrow.  Various European Court of Human Rights judgments, including Axel Springer AG v Germany, stood as authority for the notion that reputation could fall under the ambit of Article 8, provided the attack on a person’s reputation was sufficiently serious to cause prejudice to an individual’s private life.

The second and third grounds of appeal were given short shrift by the court.  On the former, Lords Hamblen and Stephens held that the confidentiality of the Letter of Request was relevant to the question of the claimant’s expectation of privacy because it related to another of the Murray factors, namely ‘the circumstances in which and the purposes for which the information came into the hands of the publisher’.  Furthermore, the judge had been correct to determine that there was a public interest in preserving the confidentiality of the Letter of the Request.  As no error of approach was found in relation to the first two grounds, the third and final ground of appeal fell away.

This article was first published on Lexis® PSL on 22 February 2022 and is reproduced with permission and thanks.