Senior Associate Ilana Baines considers the recent landmark Supreme Court ruling Bloomberg (Appellant) v ZXC (Respondent) which clarifies that “a legitimate starting point” is that a person who is the subject of a criminal investigation but is yet to be charged, has a reasonable expectation of privacy in respect of information relating to that investigation.
This is an enormously significant decision not only for privacy and criminal law but also for the media who have already reacted to it by proclaiming that their freedom of expression has been curtailed once again.
Bloomberg, a well-known financial news service, published an article commenting on a criminal investigation that was being conducted into a company and an executive of that company, known as ZXC. The executive sued Bloomberg for misuse of private information after it named him in the article and reported that the investigation regarded allegations of corruption, bribery and fraud in a foreign country. Bloomberg had obtained this information from a highly confidential letter of request seeking mutual legal assistance from a foreign government in respect of the allegations.
Bloomberg had argued that the alleged conduct by ZXC fell outside of the right to respect for private and family life under Article 8 of the European Convention on Human Rights. It was also argued that a favourable ruling would be inconsistent with previous rulings on a lay persons understanding of the presumption of innocence. The High Court and Court of Appeal both disagreed and the question of whether a person under criminal investigation has a reasonable expectation of privacy in respect of information relating to that investigation and , if so, whether this particular individual’s right to privacy in this specific case outweighed the media’s right to freedom of expression was then considered by the Supreme Court who allowed Bloomberg’s appeal.
Supreme Court Ruling
After 6 years of legal proceedings, on 16th February 2022, the appeal brought by Bloomberg was unanimously dismissed by the Supreme Court. In a landmark ruling, it held that an individual who is facing a criminal investigation has a reasonable expectation of privacy before they are charged.
The impact of this ruling is twofold. Whilst privacy and criminal lawyers, along with individuals who are the subject of a criminal investigation but are never charged, are celebrating this judgement many are questioning the impact this will have on freedom of expression. Following the hearing, Bloomberg voiced concern that the ruling will “prevent journalists from doing one of the most essential aspects of their job: putting the conduct of companies and individuals under appropriate scrutiny and protecting the public from possible misconduct”.
There have been a number of successful privacy cases including Cliff Richard and the Duchess of Sussex, however Bloomberg v ZXC is by far the most significant ruling.
The Justices giving the ruling, Lord Nicholas Hamblen and Lord Ben Stephens, were careful to clarify that “a determination as to whether there is a reasonable expectation of privacy in the relevant information is a fact-specific enquiry which requires the evaluation of all circumstances in the individual case”. It is therefore something that needs to be considered carefully on a case-by-case basis. The Justices went on to clarify that “there is a legitimate starting point that there is an expectation of privacy in relation to that information. We prefer the terminology of “a legitimate starting point” to emphasise the fact specific nature of the enquiry and to avoid any suggestion of a legal presumption”.
This will involve a two-stage test. Stage one, is whether the individual under investigation objectively has a reasonable expectation of privacy in respect of the relevant information. Stage two is whether that expectation is outweighed by the publisher’s right to freedom of expression.
In Bloomberg v ZXC, the “legitimate starting point” applied. The information at issue was obtained from a highly confidential letter of request for mutual legal assistance. It was held that the confidentiality of the information which Bloomberg published was important and relevant when considering both stages of the test but it was not determinative. The Justices held that there was a very clear public interest that the contents of the letter of request should not be published. This was on the basis of ensuring the confidentiality of a live criminal investigation. In the present case Bloomberg did not appear to weigh up ZXC’s right to privacy against the publishers right to freedom of expression.
Moving forward, each case will need to be considered based on the individual facts. The media, before deciding to publish an article containing information relating to a criminal investigation into a person, will have to consider whether in all the circumstances the “legitimate starting point” should apply and, if it does, whether the media’s right to freedom of expression outweighs that person’s reasonable expectation of privacy in relation to that information.
This is a landmark decision which finally provides some clarity for both privacy and criminal arenas and one which is very much welcomed.