Update: Reputation management during investigations: ZXC v Bloomberg LP

The background

Back in July 2020, we reported on the Court of Appeal decision in ZXC v Bloomberg LP which confirmed the general principle that a person has a reasonable expectation of privacy about the fact that they are subject to a police investigation unless and until that person is charged with an offence.

This case has now been considered by the Supreme Court ([2020] UKSC 5), as the Appellant, Bloomberg LP, appealed the Court of Appeal decision ([2020] EWCA 611). As we previously explained, the Claimant (ZXC) was a Chief Executive within X Ltd at a time when X Ltd became subject to an investigation by a UK legal enforcement body (UKLEB). A confidential letter of request (LOR) that the UKLEB made to a competent authority made its way into the hands of a Bloomberg employee, and Bloomberg published an article containing information from the LOR which included details about the role of the Claimant in a number of possible offences. The Claimant issued a claim for misuse of personal information and was successful at first instance ([2019] EWHC 970 (QB)), and in the Court of Appeal.

The decision of the Supreme Court

The Claimant has again been successful in the Supreme Court; Bloomberg’s appeal was unanimously dismissed by a panel of five Justices. In the judgment of the Court by Lord Hambleden and Lord Stephens, with which the other Justices agreed, it was affirmed that in general a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.

The Supreme Court confirmed the two-stage test to determine liability for misuse of private information:

1. Whether the claimant objectively has a reasonable expectation of privacy in the relevant information considering all the circumstances of the case, and
2. Whether that expectation is outweighed by the publisher’s right to freedom of expression.

The Supreme Court found against the Appellant on three issues.

1. The Supreme Court held that the courts below were correct to hold, as a legitimate starting point, that 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.
2. The Appellant complained that the Court of Appeal was 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. The Supreme Court found that the Court of Appeal had not held that the fact that the information originated from a confidential document rendered the information private or meant that Bloomberg could not rely on the public interest in 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.
3. As the Appellant had been unsuccessful on these prior two issues, the Supreme Court found that there were no grounds for intervening with the first instance judge’s decision in relation to the balancing exercise of article 8 and 10 rights.

What does this mean in practice?

An individual who is subject to a criminal investigation can take some comfort from the confirmation that unless and until they are charged, they have a prima facie right to privacy which can be enforced through the courts if need be.

However there is no guarantee that anonymity can be maintained. Firstly, there is only a reasonable expectation of privacy, this will still need to be proven in the courts and depending on the circumstances, a court might conclude that the expectation does not apply. Secondly, depending on the circumstances of the case, a judge might come to a different conclusion on the balance of rights between the individual under investigation and the publisher relying on freedom of expression rights. Thirdly, it will be costly to pursue such a claim through the courts, and possibly of limited assistance if the damage to reputation has already been done.

In today’s world, there is of course a constant danger that private information will be leaked via social media, on victims’ websites or in the media overseas. Individuals under investigation will need to closely monitor all potential sources of leaks and be ready to move fast both domestically and overseas when the right to privacy has been threatened.