On 15 May 2020, the Court of Appeal handed down its decision in the case of ZXC v Bloomberg, upholding the decision of Mr Justice Nicklin that an article referencing a business crime investigation into the Claimant before charge represented a misuse of this private information, continuing the approach seen in Cliff Richard v BBC. The judgment provides further clarity on two key points:
- Generally, an individual has a reasonable expectation of privacy in relation to being subject to a law enforcement/police investigation, up to the point of charge;
- There remains a distinction between reporting about the conduct alleged and the criminal investigation into that conduct.
The case concerns an article published on Bloomberg's website in 2016, which contained information about a businessman (the "Claimant") under investigation by a UK Law Enforcement Body ("UKLEB"). Some of the information contained in the article had been obtained from a Letter of Request ("LoR") for mutual legal assistance, sent by the UKLEB to a foreign state. The LoR sought banking and business records in relation to a limited company and a number of named individuals, including the Claimant. It also stated that the investigation concerned several possible offences including, corruption, bribery, offences under the Proceeds of Crime Act 2002 and Fraud Act 2006, and conspiracy. Details were given of the various possible charges that were the subject of the investigation and of the maximum penalties upon conviction. It summarised the investigations up to that point; and identified three transactions that were the specific targets of the request for assistance. (That is standard for a LoR, for without it the requested state would not feel able to assist and it is for this reason regarded as confidential - 'leaking' of such information is therefore likely to provide real detail of an investigation and its direction.) The obviously confidential nature of the source of the information published in the form of a LoR underpinned the Court's thinking throughout, as did the fact that Bloomberg had never apparently considered that confidentiality or tried to develop the story beyond what the LoR stated.
In 2017, the Claimant sought injunctive relief through an application for an order requiring Bloomberg to remove the information relating to him in the article, but the application was refused. The matter went to trial and Nicklin J held that Bloomberg had published private information about the Claimant that was in principle protected by the provisions of article 8 ECHR ('right to home and family life') and that in balancing the Claimant's rights against those of Bloomberg under article 10 ('freedom of expression'), the balance came down in favour of the former. In reaching this decision, Nicklin J found that the article published by Bloomberg contained information drawn almost exclusively from the LoR.
Bloomberg sought to appeal the Judge's findings on the basis that the Claimant did not have a right to privacy and that Bloomberg's right to freedom of expression under Article 10 outweighed the Claimant's countervailing interest.
The Court of Appeal, in dismissing Bloomberg's appeal, found that:
.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 .
In reaching this decision, the Court again acknowledged human nature to assume the worst, and the tendency to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty.
The Court further recognised that the reasonable expectation of privacy is unrelated to the type of crime and/or individual under investigation and stated:
To be suspected of a crime is damaging whatever the nature of the crime: it is sensitive personal information and there can be little justification for a hierarchy of offences giving rise to suspicion; although I would accept that there may be some cases where the reasonable expectation of privacy may be significantly reduced, perhaps even to extinction, due to the public nature of the activity under consideration .
The examples given were rioting or electoral fraud; so perhaps the best basis for a distinction lies where the crime is alleged to have taken place in the public domain, with the court approving the original judgment which illustrated the exception in a (notional) case where there had been reporting of an individual's identity during a 'siege' such that identification on arrest really did not give rise to a (further) privacy breach.
Whilst it was clearly a factor here that the Claimant had not, in fact, been arrested, the key point is that balancing article 8 and 10 is a factual judgment (as it had been here) ultimately based upon well-established factors in the European Court of Human rights case - Axel Springer v Germany . The Court of Appeal made clear its sympathies lay with Nicklin J's assessment that article 8 prevailed on the facts of this case, noting the story was about the fact a LoR had been issued with the detail of what had been said about the Claimant in it. There was no crime specific public context. It is not difficult to see how establishing or denying that such a context exists will now become a battleground between the press, on the one hand, and suspects and their lawyers on the other, with law enforcement bodies playing a lesser or greater role depending on how far the publication derives from confidential documentation (arising from the investigation) and, perhaps, how far it might prejudice their ongoing inquiries.
Although Bloomberg had sought to argue that it was artificial to distinguish between reporting about the conduct alleged and the criminal investigation into that conduct, the Court was categoric in its assessment, Underhill LJ confirming in a separate concurring judgment: "information that an individual is the subject of a formal criminal investigation is genuinely of a different character from allegations about the conduct being investigated" .
In summary this latest judgment from the Court of Appeal feels rather less like the end of a war but more like a victory in battle for a suspect - at some cost given the article was published originally and an injunction refused - in a continuing conflict of attrition.
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