ZXC v Bloomberg [2022] – The Supreme Court delivers another blow to the British media

Overview

The Supreme Court has ruled against Bloomberg in a landmark privacy decision that will make it more difficult for British media outlets to publish information about individuals subject to criminal investigations.

In a unanimous judgment delivered by the Supreme Court, it was decided 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.

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Background

The respondent, ZXC (“the claimant”) brought a claim for misuse of private information arising out of an article (“the Article”) published by Bloomberg in 2016 relating to the activities of a company in which the claimant acted as chief executive of one of its regional divisions. These activities had been the subject of a criminal investigation by a UK law enforcement body (the “UKLEB”) since 2013. The information in the Article was almost exclusively drawn from a confidential letter of request sent by the UKLEB.

The claimant sought damages and injunctive relief arguing that Bloomberg misused their private information by publishing the Article. Nicklin J upheld these claims and awarded damages of £25,000 after trial. Bloomberg’s appeal of this judgment was then dismissed by the Court of Appeal, paving the way for the judgment to be examined in the Supreme Court.

The legal framework

The claimant brought a claim under the tort of misuse of private information. The purpose of the tort is to protect an individual’s private life in accordance with Article 8 of the ECHR, regardless of whether the information shared is true or false.

A claimant must pass both stages of the two-stage test as explained in McKennit v Ash [2006]:

· Stage One: whether there is objectively a reasonable expectation of privacy in the information made, or intended to be made, public. This is considering all the circumstances of the case, including but not limited to, the so-called ‘Murray’ factors (see below).

Murray v Express Newspapers plc [2008]: “the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. They include (1) the attributes of the claimant, (2) the nature of the activity in which the claimant was engaged, (3) the place at which it was happening, (4) the nature and purpose of the intrusion, (5) the absence of consent and whether it was known or could be inferred, (6) the effect on the claimant and (7) the circumstances in which and the purposed for which the information came into the hands of the publisher”.

· Stage Two: whether the expectation of privacy is outweighed by the countervailing interest of the publisher’s right to freedom of expression - the “ultimate balancing act”.

Judgment

Citing the judgment in R (Rai) v Crown Court at Winchester [2021] the Supreme Court agreed with the proposition that, in general, a suspect in a criminal investigation has an expectation of privacy up to the point of being charged.

The Supreme Court disagreed with Bloomberg’s argument that the court had overstated the likelihood of the Article causing damage to the claimant’s reputation and that it had underestimated the public’s ability to view someone as innocent until proven guilty. Instead, the Supreme Court ruled that it was correct to consider the Murray factors (listed above). Having viewed these, (especially factor (6) “the effect on the claimant”) it would seem highly likely that the claimant’s privacy would be adversely affected when the public or the claimant’s inner circle discovered that they were under criminal investigation.

The Supreme Court also outlined that as the Article was almost exclusively drawn from a confidential letter of request, it was correct that this be treated as a relevant consideration at both stages of the test.

At stage one of the test, it was appropriate to consider the Murray factors, with factor (7) “the circumstances in which and the purposes for which the information came into the hands of the publisher”, being clearly applicable in determining a reasonable expectation of privacy. When examining stage two of the test, the court viewed the private characteristics of the letter as also important in highlighting the general public interest of maintaining the confidentiality of the letter so as not to preclude the criminal investigation. Thus, Bloomberg’s right to freedom of expression failed to countervail the claimant’s expectation of privacy, as publishing the Article in this scenario would not be beneficial to the public interest.

Comment

Bloomberg has viewed the decision by the Supreme Court as "frightening" and argues that the right to privacy is a further addition to the rich and powerful’s “legal toolbox” in silencing their critics.

Certainly, the judgment adds to the growing number of judgments that have strengthened privacy law in the UK. The ruling emphatically establishes that an individual suspected of criminal wrongdoing has a reasonable expectation of privacy until charged. This will restrict how the British media reports on the early stages of the majority of criminal investigations and the way in which the media uses confidential documents.

Concerns remain that claims for misuse of private information are not subject to the same in-built statutory hurdles that arise with claims in defamation, such as satisfying the ‘serious harm’ threshold under S1 of the Defamation Act 2013. In defamation actions, there are also strong protections for defendants who claim their publications were in the public interest. If case law in privacy actions continues to develop in this way, misuse of private information claims will be brought to obtain injunctions against publications of allegedly libellous articles, and their use in this manner could be harmful to freedom of expression, and UK democracy at large.

Indeed, rumours are gathering pace that that the judgment has displeased lawmakers in Parliament, and that the developments in case law in regard to the tort of misuse of private information will be rolled back as part of ministers’ plans to replace the Human Rights Act with a new British ‘Bill of Rights’.

The tort of misuse of private information is an area of law that will remain under immense scrutiny.