On 16 February 2022, the Supreme Court delivered its judgment in the case of Bloomberg LP v ZXC  UKSC 5, upholding the decision in the Court of Appeal (‘CoA’) that criminal suspects have a prima facie right to privacy.
ZXC was a businessman. He was chief executive of a regional division of a company, that was referred to in the judgments as X Ltd. X Ltd is an international business, which was being investigated by a law enforcement body in the United Kingdom (‘UK’), for corruption, bribery and fraud. 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 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 ZXC. The letter specified that ZXC 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 ZXC.
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 in response, 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 ZXC’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 the matter further. ZXC initiated proceedings, seeking an injunction and damages for misuse of private information, and succeeded. Bloomberg appealed to the Court of Appeal, which upheld Mr Justice Nicklin’s judgment in the High Court (for a summary of the CoA’s ruling, see my previous blog article here).
The issues to be decided by the Supreme Court were:
- Whether the CoA had been wrong to hold that as a general rule, 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 CoA 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 about a criminal investigation originated from a confidential law enforcement document rendered the information private and/or undermined the publisher’s ability to rely on the public interest in its disclosure.
Issue 1: The privacy rights of criminal suspects
In a claim for misuse of private information it is necessary to first show that there is a reasonable expectation of privacy in the relevant information. This assessment is objective and must take into account all the circumstances of the case (the so-called ‘Murray factors’):
- The attributes of the claimant;
- The nature of the activity in which the claimant was engaged;
- The place at which it was happening;
- The nature and purpose of the intrusion;
- The absence of consent and whether it was known or could be inferred;
- The effect on the claimant; and
- The circumstances in which and the purposes for which the information came into the hands of the publisher.
The Supreme Court pointed out that the ‘general rule’ or ‘legitimate starting point’ cannot be a legal rule or presumption. This is because the determination of a reasonable expectation of privacy is a fact-specific enquiry that does not invariably lead to an objective finding for a claimant. Further, the general rule still requires a claimant to prove the circumstances that establish that there was (objectively) a reasonable expectation of privacy. Certain categories of information – such as details about a person’s health – can be characterised as private at the outset unless there are “strong countervailing circumstances”. The question was whether information regarding a criminal investigation will also fall within this category.
The Supreme Court made a number of points. First, that there is a rational boundary in the light of the principle of open justice that where a person is charged with a criminal offence, there can be no reasonable expectation of privacy. Secondly, that the present appeal concerned information that was not information that Bloomberg had published as a result of its own investigations. The information that was relevant to this appeal was related to the investigation of ZXC by a UK law enforcement body that included its suspicions, assessments, and preliminary conclusions.
Thirdly the courts, and many police bodies and organisations, have long recognised the negative impact on an innocent person’s reputation from the publication that he or she is being investigated on suspicion of committing a crime. This has led to “a uniform general practice by state investigatory bodies not to identify those under investigation prior to charge” and has become a matter of public policy. The College of Policing guidance reflects this approach. The damage to reputation is recognised, irrespective of the presumption of innocence, and “has led to a general rule or legitimate starting point that such information is generally characterised as private at stage one” of the misuse of private information test. The Supreme Court cited with approval numerous cases that have found that a suspect in a criminal investigation has an expectation of privacy up to the point of charge. Overall, it found that this is the legitimate starting point where a misuse of private information claim is brought, although this does not equate to a legal presumption. Bloomberg raised a number of points to argue otherwise.
(i) The Presumption of Innocence
Bloomberg submitted that the presumption of innocence eliminates, or significantly reduces, the negative effects of publication, relying on dicta of Lord Rodger in the case of In re Guardian News and Media Ltd  UKSC 1 and considered further in Khuja v Times Newspapers Ltd  UKSC 49. The Supreme Court noted that the majority and minority judgments in Khuja concluded that the public’s understanding of the presumption of innocence “is a question of fact rather than law” and that the legal presumption of innocence is one that is applied in criminal trials under the direction of a judge.
The context in the present case was different: “the question is how others, including a person’s inner circle, their business or professional associates and the general public, will react to the publication of information that that person is under criminal investigation”. Accordingly, the Supreme Court rejected Bloomberg’s submission, finding that “consistent with judicial experience” such a revelation would ordinarily cause prejudice to a criminal suspect and could be “profound and irremediable”.
(ii) Defamation Law and Misuse of Private Information
Bloomberg argued that finding a general rule of a reasonable expectation of privacy on the basis that the public equates suspicion with guilt is contrary to well-established principles in defamation law. Namely, that the ‘ordinary reasonable reader’ is not ‘unduly suspicious’ or ‘avid for scandal’. The Supreme Court considered it inappropriate to introduce concepts from defamation law into a claim in the tort of misuse of private information. The distinction between the two areas of law is stark. For defamation claims the falsity of the information is of central importance, whereas in misuse of private information claims the information can be either true or false. The purpose of a misuse of private information claim is to protect a claimant’s right to private and family life in accordance with Article 8 of the European Convention on Human Rights (‘the Convention’).
The Supreme Court also highlighted that unlike in defamation law, a misuse of private information claim is not confined to an objective assessment of the meaning that the ‘notional ordinary reasonable reader’ would find. Rather, how other people actually perceive the person as a result of the publication is relevant. Therefore, it was concluded that it could not be argued that this damage to reputation should not be considered in order to provide consistency with defamation law.
(iii) Reputational Damage
The extent to which reputational damage can or should be an aspect of Article 8 of the Convention was also explored. It was submitted by Bloomberg that a suspect’s reputation being harmed by the fact of a criminal investigation should not form part of the assessment of private life. The Supreme Court found this to be “an unduly restrictive view of the protection afforded by Article 8” and cited the many cases in the European Court of Human Rights (‘ECtHR’) that have shown that the concept of private life is broad. It can include activities of a professional nature and even though ZXC is a businessman of whom public scrutiny in that role can be expected, it is only one factor that must be considered at stage one. Further, “we anticipate greater damage to a businessperson actively involved in the affairs of a large public company than to a private individual”.
In Denisov v Ukraine (Application No 76639/11), the Grand Chamber of the ECtHR had reiterated its decision in Pfeifer v Austria (Application No 12556/03) that in principle a person’s reputation formed part of his or her personal identity and psychological integrity and therefore falls within the scope of Article 8. This was also recognised in the case of Axel Springer AG v Germany (Application No 39954/08)  EMLR 15, in which the ECtHR included the caveat that there must be a certain level of seriousness of the attack on a person’s reputation. The Supreme Court concluded that information that is reputationally damaging may fall within the scope of Article 8 “provided it attains a certain level of seriousness and consequentially impacts on the personal enjoyment of the right to respect for private life”. In the present case, it found that the requisite level of seriousness had been met.
(iv) The Murray Factors
Bloomberg argued that the courts below had not properly considered the second Murray factor: ‘the nature of the activity in which the claimant was engaged’. The ‘activity’ considered was confined to the investigation, rather than ZXC’s alleged corruption in relation to X Ltd’s activities in a foreign country. The Supreme Court disagreed, finding that this was not a factor of particular significance because the present case concerned information relating to a criminal investigation and not on identifying the nature of ZXC’s activity. Further, Nicklin J had been entitled to identify the final Murray factor as the most significant factor. That is, ‘the circumstances in which and the purposes for which the information came into the hands of the publisher’.
Issue 2: Confidentiality and the Public Interest
On the second issue, the Supreme Court did not agree with Bloomberg that the finding by the courts below that the document disclosed had been confidential negated any public interest argument that Bloomberg could make. Rather, they had been correct to treat the confidentiality of the document as a relevant and important factor at both stages of the misuse of private information test, in particular in the final Murray factor (see above). Nicklin J “was clearly aware of the distinction between confidential information and private information”. While privacy and confidentiality are distinct, “confidentiality may well be relevant to whether there is a reasonable expectation of privacy” and if information is confidential, this “is likely to support the reasonableness of an expectation of privacy”.
It was pointed out in the ruling that the concept of the public interest may affect both the justification for the interference with the right to privacy and the right to freedom of expression, depending on the context. In the present case, the Supreme Court found that there was both “a general public interest in the observance of the duties of confidence and a specific public interest in maintaining the confidence of the Letter of Request so as not to prejudice the criminal investigation”.
Given that the approach in the UK is for the police authorities to maintain the anonymity of suspects of crime, the conclusion of the Supreme Court that suspects have a prima facie reasonable expectation of privacy in that information is unsurprising. The ruling now provides a definitive answer to this question. It means that media publishers will need to refrain from publishing the name of, or otherwise identifying, suspects of crime until they are charged with an offence. It is likely to be difficult to displace the legitimate starting point that suspects have a right to privacy in information relating to an investigation.
Attempts to ‘box in’ reputation to the law of defamation have not had much success in recent cases. The Supreme Court was of the view that a restrictive approach to reputation is not consistent with the application of Article 8 of the Convention. Equally, extending defamation law principles to other areas of information law (privacy and data protection) may prove difficult. The ruling was clear that the application of the principle of the ‘notional ordinary reasonable reader’ when evaluating the Murray factors was inappropriate.
The Supreme Court concentrated on the first issue that was before it, and unfortunately did not provide much analysis on the concept of the public interest, or how media organisations should assess any competing public interest issues that may arise. As I have previously highlighted, this case poses some difficulty for journalists, who will often receive from sources confidential information that could expose wrongdoing. Where confidential information is obtained, the public interest not only in publishing the article, but also in breaking confidence must be examined carefully.
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 Murray v Express Newspapers plc  EWCA Civ 446.
 Paragraphs 67 and 68 of the judgment.
 Paragraph 69.
 Paragraph 72.
 Paragraph 77.
 paragraph 78.
 Paragraph 80.
 Paragraph 81.
 Including Hannon v News Group Newspaper Ltd  EWHC 1580 (Ch), PNM v Times Newspapers Ltd  EWCA Civ 1132, Richard v British Broadcasting Corpn  EWHC 1837 (Ch), Sicri v Associated Newspapers Ltd  EWHC 3541 (QB).
 Paragraphs 144 and 145.
 Paragraphs 107 and 108.
 Paragraph 108.
 Paragraphs 108 and 109.
 Paragraph 74(b).
 Paragraphs 111 and 112.
 Paragraph 112.
 Paragraphs 115 and 116.
 Paragraph 140.
 Paragraph 125.
 paragraph 142.
 paragraphs 129 and 131.
 paragraph 141.
 paragraph 147.
 paragraphs 148 and 149.
 Paragraph 151.
 Paragraph 150.
 Paragraph 154.