ZXC v Bloomberg LP [2020] EWCA 611: the privacy rights of suspects of crime

This is an overview of the case ZXC v Bloomberg LP, where the Court of Appeal considered the privacy rights of suspects in criminal investigations. It was before Lord Justice Underhill, Lord Justice Bean and Lord Justice Simon. The decision was unanimous and upheld Mr Justice Nicklin’s judgment in the High Court.

The Facts

ZXC was a businessman. He was chief executive of a regional division of a company, that was referred to in the judgment as X Ltd. X Ltd is an international business, which was being investigated by a UK law enforcement body, for corruption, bribery and fraud. The Defendant Bloomberg is an organisation which provides financial software, and also publishes financial news on various platforms. 

X Ltd had been suspected of involvement in corruption for a number of years. In Autumn of 2016, the Defendant published a news article about an investigation by the UK law enforcement body into X Ltd and the claimant. The claimant did not take legal action over this article and it is a later article that was the subject of these proceedings.

Later in 2016, a journalist at Bloomberg received a copy of what is known as a ‘formal letter of request’. The United Nations Convention against Corruption includes provisions for mutual legal assistance between nations. A letter of request enables nations to co-operate in criminal investigations; they are recognised in a body of case law as highly confidential. 

The letter of request that Bloomberg obtained was from the UK law enforcement body asking for information from a foreign state where X Ltd had undertaken a number of suspicious transactions. It asked for banking and business records in relation to X Ltd and a number of individuals, including the claimant. The letter specified that the claimant was being investigated for conspiracy to defraud, that the investigation was in the evidence gathering stage and that no-one had been charged with any offence. There were further details about the law enforcement body’s suspicions regarding the claimant.

There was also a statement in the letter with the heading “confidentiality” which read as follows: “in order not to prejudice the investigation, I request that no person (including any of the above named subjects) is notified by the competent authorities in your country of the existence and contents of this Letter of Request”. The letter also stated the reason for this confidentiality as: “if the above suspect or an associated party became aware of the existence of this request or of action taken in response to it, actions may be taken to frustrate our investigation by interference with documents or witnesses.”

Bloomberg contacted the law enforcement body for comment on the investigation and informed a press officer that it had a copy of the letter of request. In an email, the press officer highlighted the confidential nature of the letter, that printing an article could prejudice the ongoing criminal investigation and asked what was intended to be published and when. There were a number of exchanges between Bloomberg and press officers at the law enforcement body. Ultimately Bloomberg declined to provide details of the article it was going to publish. Bloomberg also contacted the claimant’s solicitor who expressed concern that the document had been leaked. 

After the article was published the law enforcement body wrote an email of complaint to Bloomberg, but did not pursue matters further. The claimant initiated proceedings, seeking an injunction.

At first instance

The usual two-stage test in misuse of private information claims was applied in the High Court. The first stage is to consider whether the Claimant’s right to private life is engaged and this involves deciding whether or not the claimant has a reasonable expectation of privacy in relation to the matter in question. This is determined objectively, essentially asking what a person of ordinary sensibilities would feel if he or she were placed in the same position as the claimant and was faced with the same exposure. 

The second stage is to consider, whether, in the circumstances, the Claimant’s qualified privacy right has to give way to some competing consideration. The second stage in this case involved the balance between the claimant’s right to private life, against the Defendant’s article 10 right (the right to freedom of expression under the European Convention on Human Rights). Neither the right to private life, nor the right to freedom of expression, has precedence over the other and there must be an analysis of the comparative importance of the rights in the particular case, and the justifications for interfering or restricting either right. Finally the proportionality test, or the so-called ultimate balance test, is applied to conclude which right overall succeeds. The European Court of Human Rights has given broad guidance on factors relevant to the balancing exercise in Axel Springer v Germany[i].

In the present case, the key question for the first stage was whether or not a person can have a reasonable expectation of privacy where he or she is being investigated for a criminal offence. The judge noted that there were a number of cases at first instance in which this question had been addressed and that from these cases it is possible to state that in general a person does have a reasonable expectation of privacy in a police investigation up to the point where they are charged. 

He highlighted the conclusions in the case of Richard v The BBC[ii] in paragraphs 248 to 251 of that judgment, where Mr Justice Mann had reflected that it was “understandable and justifiable” that a suspect of a crime would not wish others to know about an investigation because of the stigma attached, and furthermore that the public often equates suspicion with guilt. He also noted that the police force themselves have adopted a policy of not naming suspects prior to charge.

Nicklin J applied the factors identified in Murray v Express Newspapers Plc[iii] that are relevant in determining the first stage of the misuse of private information test and at paragraph 125 of the judgment made the following observations:

  • Although the claimant had a senior position at X Ltd, he was not a director and did not serve a public function.
  • The claimant was not arguing that the Defendant could not report on the criminal investigation, but that it could not report on the confidential details that were contained within the letter of request.
  • None of the details in the latter in relation to the claimant had been made public by the investigating body.
  • The claimant did not consent to the publication, and,
  • The article had a negative impact on the claimant in that it affected his autonomy and his reputation.

Nicklin J found that the final factor identified in Murray was the most influential in this case. That is, the circumstances in which, and the purposes for which, the information came into the hands of the publisher. He made the following points:

  • The investigation in X Ltd was publicly known, but the suspects were not;
  • There was clear public policy that suspects should not be named;
  • A letter of request is a highly confidential document;
  • The article was published before the date in the letter for a response from its intended recipient;
  • Some of the contents of the letter were highly sensitive and would not have been disclosed to the public;
  • As the investigation continued, any initial or preliminary conclusions of the law enforcement body might have been revised or abandoned;
  • Public disclosure of information from an ongoing police investigation harms the public interest because it could jeopardise the investigation by alerting potential suspects to the avenues being pursued and thereby giving them opportunity to destroy evidence or obstruct the investigation. 
  • It is not in the public interest for only one side of a case to be presented. The contents of the letter may never have been disclosed. Even if the claimant were to face criminal proceedings in the future, only evidence in a trial would be made public, and not the provisional conclusions or opinions of the investigators.

In considering the second stage of the misuse of private information test, Nicklin J acknowledged that corruption in foreign states, and the possible involvement of X Ltd and its employees in that corruption, is a matter of high public interest. But he was of the view that this had only an indirect bearing on this case because the article was not about the fact that there was an investigation, but was to reveal the suspicions of the investigators, and to identify the suspects.

At paragraph 127, the judge said: “What the Defendant must demonstrate is that there was a sufficient public interest in revealing information about the investigation drawn from the letter of request to outweigh the reasonable expectation of privacy”. He took as the starting point that there was very clear public interest that the contents of the letter should nothave been published, to maintain the confidentiality of the details of the investigation contained within it. At paragraph 130, he identified circumstances where the public interest in maintaining this confidentiality might be outweighed: For example, if the leaked information suggested that investigators were subject to improper political pressure not to pursue certain suspects or lines of enquiry. 

At paragraph 132, Nicklin J concluded that there was nothing to prevent the Defendant from publishing articles raising awareness about corruption in the foreign country without disclosing the details of the letter. Further, that it was for the law enforcement body investigating X Ltd to decide whether or not the details within the letter should be released to the public to encourage witnesses to come forward.

Applying the ultimate balancing test, it was found that there had been a serious interference in the claimant’s right to private life in publishing confidential information relating to a criminal investigation in which he was named a suspect. The judge concluded that the extent of the interference in the Defendant’s Article 10 right in restricting publication was limited, given that Bloomberg was free to report generally on alleged corruption in the foreign country, and the activities of X Ltd and the claimant. In the judge’s view there was no pressing need, or public interest justification for making public the contents of the letter of request, and there was a clear public interest in maintaining its confidentiality.

The Claimant was granted an injunction and awarded £25,000 in damages.

The Court of Appeal

The primary question for the Court of Appeal was whether, and to what extent, a person can have a reasonable expectation of privacy in relation to information that relates to a criminal investigation. Specifically, where the investigation involves a business transaction.

On appeal, Bloomberg argued that it was not the fact of an investigation that gave rise to an interference in a person’s private life, but the nature of the activity being investigated. A distinction could be drawn between those cases that involved a truly ‘personal’ activity, and those that constituted ‘public’ aspects of a person’s life, such as business and politics. Decisions in the UK courts and in the European Court of Human Rights have made clear that the right to private life does not extend to activities that are of a public nature. 

The Court of Appeal approved of Mann J’s observations in Richard v The BBC and affirmed that the starting point is that suspects have a right to privacy in criminal investigations prior to charge. At paragraph 82 of the Court of Appeal’s judgment, the following was stated: “those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst and to overlook the fundamental legal principle that those who are accused of an offence are deemed innocent until they are proven guilty”.

The court of appeal found that the reasonable expectation of privacy is not dependant on the type of crime being investigated, or the public characteristics of the suspect. To be suspected of any crime is sensitive personal information that is damaging. However, Simon LJ did identify some cases where the reasonable expectation may be significantly reduced, by the public nature of the activity under consideration. For example, rioting or electoral fraud. And that such a reduction would have a bearing on the weight to be attached at stage two of the test.

The Defendant also appealed on the ground that at first instance, Nicklin J had wrongly conflated private information with confidential information. The Court of Appeal disagreed, finding that whilst the judge had placed reliance on the highly confidential nature of the letter of request, he was right to do so, as it was part of the ‘circumstances in which and the purposes for which, the information came into the hands of the publisher’ as per the criteria in Murray. The Court agreed with his conclusion that Bloomberg had not considered the consequences of breaching the confidentiality of the letter, or weighed up those consequences, against any perceived public interest in the publication of its contents. 

The Court of Appeal also agreed with the distinction made at first instance between the factual allegations about the claimant’s alleged conduct on the one hand, and the investigator’s suspicions and preliminary conclusions on the other. It disagreed with the Defendant’s proposition that this distinction undermined investigative journalism, and that the provenance of the information and its confidential nature should not be taken into account when assessing the public interest. 

Case Comment

This judgment is significant because it is the first time the Court of Appeal has considered the privacy rights of criminal suspects prior to charge. The case of Richard v The BBC attracted much criticism and this Court of Appeal judgment clarifies that the general rule is an accused person has a prima facie reasonable expectation of privacy in respect of an investigation.

It demonstrates the extended reach of privacy law, which can often fill the gap that libel cannot. Whilst a misuse of private information claim is not a claim to protect reputation, reputation does come within the ambit of Article 8. This also means that the media must be alert to the fact that in a misuse of private information claim, the stated fact does not need to be untrue, and giving a person a right of reply prior to publication will not suffice.

This judgment poses some difficulty for journalists who will often receive from sources confidential information that could expose wrongdoing. Media organisations need to consider the wide spectrum where the public interest is relevant. Where confidential information is obtained, the public interest not only in publishing the article, but also in breaking confidence must be examined carefully.

Bloomberg applied to the Court of Appeal for permission to appeal to the Supreme Court and the decision is awaited. 

If you are interested in any further information or advice, please contact my clerks on: 0300 0300 218 or clerks@normantonchambers.com

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[i] [2012] EMLR 15.

[ii] [2018] 3 WLR 1715

[iii] [2009] Ch 481