Bloomberg published details from a confidential law enforcement Letter of Request identifying ZXC as a suspect in a criminal investigation. The Supreme Court held that, as a legitimate starting point, persons under criminal investigation have a reasonable expectation of privacy in information relating to that investigation prior to being charged.
Background
The respondent, ZXC, was a US citizen working as a senior executive for a publicly listed company (X Ltd) operating overseas. Since 2013, a UK law enforcement body (UKLEB) had been conducting a criminal investigation into X Ltd’s activities, focusing on allegations of fraud, bribery and corruption. In autumn 2016, the UKLEB sent a confidential Letter of Request to a foreign state seeking banking and business records. The Letter was headed ‘CONFIDENTIAL LETTER OF REQUEST’ and contained detailed assessments of evidence, the UKLEB’s preliminary conclusions, and its suspicions regarding specific individuals, including the respondent.
Bloomberg LP, an international financial media organisation, obtained a copy of this Letter of Request and published an article almost exclusively drawn from its contents, identifying the respondent and detailing the UKLEB’s suspicions against him. The UKLEB had repeatedly warned Bloomberg prior to publication that disclosure would pose a material risk of prejudice to the criminal investigation. No person connected with X Ltd had been charged with any offence.
ZXC brought a claim for misuse of private information. At trial, Nicklin J upheld the claim, awarded £25,000 in damages, and granted an injunction. The Court of Appeal (Simon LJ, Underhill LJ, and Bean LJ) dismissed Bloomberg’s appeal. Bloomberg appealed to the Supreme Court.
The Issue(s)
Three issues arose on appeal:
- Whether the Court of Appeal was wrong to hold 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.
- Whether the confidential origin of the information from a law enforcement document rendered the information private and/or undermined Bloomberg’s reliance on the public interest in disclosure, in circumstances where no claim for breach of confidence was pursued.
- Whether the Court of Appeal was wrong to uphold the findings that the claimant had a reasonable expectation of privacy and that the Article 8/10 balancing exercise favoured the claimant.
The Court’s Reasoning
Issue 1: The Legitimate Starting Point
The Supreme Court, in a unanimous judgment delivered by Lord Hamblen and Lord Stephens, affirmed that there is a legitimate starting point — though not a legal presumption — that a person under criminal investigation has a reasonable expectation of privacy in respect of information relating to that investigation prior to being charged. The Court preferred the term ‘legitimate starting point’ to avoid any suggestion of a legal presumption.
The Court emphasised that this starting point does not invariably lead to a finding of a reasonable expectation of privacy; it remains a fact-specific inquiry considering all the circumstances. However, the rationale was firmly established:
publication of such information ordinarily causes damage to the person’s reputation together with harm to multiple aspects of the person’s physical and social identity such as the right to personal development, and the right to establish and develop relationships with other human beings and the outside world all of which are protected by article 8 of the ECHR
The Court undertook an extensive review of the policy landscape, noting a uniform general practice across state bodies — including the College of Policing, the IOPC, the Metropolitan Police, the Crown Prosecution Service, and the Government — not to identify those under investigation prior to charge, save in exceptional circumstances. The Court cited Mann J’s observation in Richard v BBC:
It seems to me that on the authorities, and as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation, and I so rule. As a general rule it is understandable and justifiable (and reasonable) that a suspect would not wish others to know of the investigation because of the stigma attached. … If the presumption of innocence were perfectly understood and given effect to, and if the general public were universally capable of adopting a completely open and broad-minded view of the fact of an investigation so that there was no risk of taint either during the investigation or afterwards (assuming no charge) then the position might be different. But neither of those things is true.
Rejection of Bloomberg’s Arguments
Presumption of innocence: Bloomberg argued that the public’s ability to observe the presumption of innocence meant the starting point overstated the reputational damage of publication. The Court rejected this, holding that while the presumption of innocence is a legal principle applicable in criminal trials, the question here was how others — including the person’s inner circle, professional associates, and the general public — would react to such publication. The Court concluded:
All the material which we have set out between paras 80-99 above now admits to only one answer, consistent with judicial experience, namely that the person’s reputation will ordinarily be adversely affected causing prejudice to personal enjoyment of the right to respect for private life such as the right to establish and develop relationships with other human beings.
Defamation authorities: Bloomberg argued that defamation principles regarding the ‘ordinary reasonable reader’ should apply, as such a reader can distinguish suspicion from guilt. The Court firmly rejected this cross-reading between torts, observing that misuse of private information is a separate, distinct and stand-alone tort serving a different purpose:
We consider that it is inappropriate to read across the concept of a hypothetical reader from the tort of defamation into the tort of misuse of private information.
Reputational damage: Bloomberg contended that information was private only if it belonged to a part of a claimant’s life of no one else’s concern, not merely because it was reputationally damaging. The Court, drawing on ECtHR Grand Chamber authority in Denisov v Ukraine and Axel Springer AG v Germany, held that reputation falls within the scope of ‘private life’ under Article 8 provided the attack attains a certain level of seriousness and causes prejudice to personal enjoyment of private life rights.
Incorrect legal test: Bloomberg argued the courts below gave pre-ordained weight to one factor. The Court found that both Nicklin J and the Court of Appeal had properly applied the multi-factorial Murray analysis. The judge was entitled to identify the most significant factor as the circumstances in which the information came into Bloomberg’s hands. Regarding the claimant’s status as a businessman, the Court acknowledged wider limits of acceptable criticism for businessmen involved in public companies, but held this was not determinative and ordinarily greater damage would be anticipated for such a person than for a private individual.
Issue 2: Confidentiality of the Letter of Request
The Court held that neither the judge nor the Court of Appeal treated confidentiality as determinative. Rather, the confidential origin of the information was properly treated as a relevant and important factor at both stages of the analysis. At stage one, confidentiality was clearly relevant to the Murray factor of ‘the circumstances in which and the purposes for which the information came into the hands of the publisher.’ At stage two, the public interest in observing duties of confidence both weakened justification for restricting the privacy right and strengthened justification for restricting the freedom of expression right.
Issue 3: The Balancing Exercise
This ground was dependent on establishing error on Issues 1 and/or 2. Since no such error was shown, there were no grounds for interfering with the judge’s balancing exercise, which was described as analogous to a discretionary exercise not readily attracting appellate intervention.
Practical Significance
This is a landmark decision of the Supreme Court establishing with clarity that, as a legitimate starting point, individuals under criminal investigation have a reasonable expectation of privacy in information relating to that investigation prior to being charged. The decision has significant implications for media organisations considering publication of information derived from ongoing criminal investigations. It affirms the coherence between the law of misuse of private information and the operational policies of law enforcement bodies and government regarding pre-charge anonymity. Crucially, the Court drew a clear distinction between pre-charge and post-charge positions, with the open justice principle applying from the point of charge. The decision also reinforces the independence of the tort of misuse of private information from defamation principles, and confirms that reputational harm can engage Article 8 where it attains sufficient seriousness. The starting point remains rebuttable, and the Article 8/10 balancing exercise continues to require case-by-case assessment.
Verdict: The Supreme Court unanimously dismissed Bloomberg’s appeal. The judgments of Nicklin J and the Court of Appeal were upheld in their entirety. The claimant had a reasonable expectation of privacy in the information relating to the criminal investigation, and the Article 8/10 balancing exercise was correctly resolved in favour of the claimant’s privacy rights. The award of £25,000 in damages and the injunction preventing further publication remained in force.
Source: Bloomberg LP v ZXC [2022] UKSC 5
