Insights Supreme Court upholds Court of Appeal decision that publishing details of a criminal investigation before charge infringes privacy

ZXC is a US citizen who worked for an overseas company. He and his employer were the subject of a criminal investigation by a UK Legal Enforcement Body (UKLEB). During that investigation, the UKLEB sent a confidential Letter of Request to the authorities of a foreign state seeking, among other things, information and documents relating to ZXC. The letter expressly requested that its existence and contents remain confidential.

Bloomberg LP, a well-known media company, obtained a copy of the letter, on the basis of which it published an article reporting that information had been requested in respect of ZXC and detailing the matters in respect of which he was being investigated. After Bloomberg refused to remove the article from its website, and following an unsuccessful application for an interim injunction, ZXC issued proceedings against Bloomberg for misuse of private information.

ZXC claimed that he had a reasonable expectation of privacy in relation to: (i) the fact that the UKLEB had requested information relating to him in the context of its investigations; and (ii) the details of the matters that the UKLEB was investigating in relation to him.

The first instance judge held that Bloomberg had published private information that was, in principle, protected by Article 8 of the European Convention on Human Rights, and that in balancing ZXC’s rights against those of Bloomberg under Article 10 ECHR, the balance favoured ZXC. Bloomberg’s appeal against that judgment was dismissed by the Court of Appeal. Bloomberg appealed to the Supreme Court.

The Supreme Court unanimously rejected Bloomberg’s challenge to the general rule that a person under criminal investigation has, before being charged, a reasonable expectation of privacy in relation to that investigation. Bloomberg argued that:

  1. given the public’s ability to observe the presumption of innocence, the application of a general rule or legitimate starting point is unsound because it overstates the extent to which publishing the information will cause damage to the claimant’s reputation; the Supreme Court’s response was that the presumption of innocence is a legal presumption applicable to criminal trials, but in this different context, the question was how others, including a person’s inner circle, would react to the publication of information that that person is under criminal investigation; it was undeniable that a person’s reputation will ordinarily be adversely affected, impacting their right to respect for private life such as the right to establish and develop relationships with other people;
  2. the courts’ reliance below on the “human characteristic” to equate suspicion or investigation with guilt on the assumption that there is “no smoke without fire” runs contrary to well-established principles in defamation law such that the ordinary reasonable reader can distinguish suspicion from guilt and is not unduly suspicious or avid for scandal; the Supreme Court said, however, that ZXC had not brought a claim in defamation; the tort of misuse of private information is a separate tort with different constituent elements and a distinct purpose; unlike in defamation, the purpose of the tort of misuse of private information is not only to protect an individual from the publication of untrue information but to protect an individual’s private life in accordance with Article 8, regardless of the truth or falsity of the information, and it was therefore inappropriate to read across concepts from the tort of defamation;
  3. information should not be protected because it is reputationally damaging but because it belongs to a part of the claimant’s life which is of no-one else’s concern and that did not include ZXC’s business activities; the Supreme Court said that this was an unduly restrictive view of the protection afforded by Article 8, which can include professional or business activities; a person’s reputation is within the scope of their Article 8 “private life” provided the attack on reputation attains a certain level of seriousness and prejudices a person’s right to respect for private life;
  4. the courts below had failed to apply the correct legal test at stage one, involving a consideration of “all the circumstances of the case”, which should have included the activity in which ZXC was engaged, namely “alleged corruption in relation to ZXC’s company’s activities in a foreign country”; the Supreme Court said that the nature of the activity in which ZXC was engaged was not a factor of particular significance here; the courts below had given due consideration to the applicable factors identified in Murray v Express Newspapers plc [2008] EWCA Civ 446 in their multi-factorial analysis, including ZXC’s status as a businessman involved in the affairs of a large public company; whilst ZXC’s status might mean that the limits of acceptable criticism were wider than for a private individual, there was a limit; the factor was not in itself determinative and should only form part of the analysis.

Therefore, the Supreme Court said, the courts below were correct to hold 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 and that in all the circumstances this was a case in which that applied and there was such an expectation.

Bloomberg also argued that 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 Bloomberg published information originating from a confidential law enforcement document, itself rendered the information private and/or undermined Bloomberg’s ability to rely on the public interest in its disclosure.

The Supreme Court unanimously disagreed, finding that, although the first instance judge had been right to treat the letter’s confidentiality as a relevant and important factor, neither the judge nor the Court of Appeal had held that the letter’s confidentiality itself rendered the information private or prevented Bloomberg from relying on the public interest on its disclosure. Whilst there is no necessary overlap between the distinct actions for misuse of private information and for breach of confidence, confidentiality and privacy will often overlap, and if information is confidential, that is likely to support the reasonableness of an expectation of privacy.

Given the findings on the first two issues, the Supreme Court said that there were no grounds for intervening with the judge’s decision, and the Court of Appeal’s upholding of such decision, in relation to the balancing exercise between Articles 8 and 10. The appeal was dismissed. (Bloomberg LP v ZXC [2022] UKSC 5 (16 February 2022) — to read the judgment in full, click here).