Bloomberg LP v ZXC [2022] UKSC 5

Bloomberg published an article containing information from a confidential Letter of Request regarding a criminal investigation into ZXC by a UK law enforcement body. ZXC claimed misuse of private information. The Supreme Court upheld that persons under criminal investigation have, prior to charge, a reasonable expectation of privacy in information relating to that investigation.

Facts

The respondent, ZXC, was a US citizen working as chief executive of a regional division of a publicly listed company (X Ltd). A UK law enforcement body (UKLEB) had been conducting a criminal investigation since 2013 into X Ltd’s activities, including allegations of fraud, bribery and corruption. In 2016, Bloomberg LP published an article containing information almost exclusively drawn from a confidential Letter of Request sent by the UKLEB to a foreign state seeking mutual legal assistance. The Letter of Request contained the UKLEB’s assessment of evidence, its belief that ZXC had committed specified criminal offences, and explanations of how evidence sought would assist the investigation.

ZXC brought a claim for misuse of private information. At trial, Nicklin J found in favour of ZXC, awarding £25,000 damages. The Court of Appeal dismissed Bloomberg’s appeal. Bloomberg appealed to the Supreme Court.

Issues

Issue 1

Whether the Court of Appeal was wrong to hold that there is a general rule that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.

Issue 2

Whether the Court of Appeal was wrong to hold that the confidential nature of the law enforcement document rendered the information private and/or undermined Bloomberg’s ability to rely on public interest.

Issue 3

Whether the Court of Appeal was wrong to uphold the findings that ZXC had a reasonable expectation of privacy and that the article 8/10 balancing exercise favoured ZXC.

Judgment

The Supreme Court unanimously dismissed the appeal. Lord Hamblen and Lord Stephens delivered the judgment, with Lord Reed, Lord Lloyd-Jones and Lord Sales agreeing.

Reasonable Expectation of Privacy

The Court held that once it is established that information concerns a person under criminal investigation prior to charge, the correct approach is to start with the proposition that there will be a reasonable expectation of privacy in such information. This is a ‘legitimate starting point’ rather than an irrebuttable legal presumption.

It seems to me that on the authorities, and as a matter of general principle, a suspect has a reasonable expectation of privacy in relation to a police investigation, and I so rule. As a general rule it is understandable and justifiable (and reasonable) that a suspect would not wish others to know of the investigation because of the stigma attached.

The Court rejected Bloomberg’s argument that the presumption of innocence ameliorates harm from publication, noting:

If the presumption of innocence were perfectly understood and given effect to, and if the general public were universally capable of adopting a completely open and broad-minded view of the fact of an investigation so that there was no risk of taint either during the investigation or afterwards (assuming no charge) then the position might be different. But neither of those things is true.

Confidentiality

The Court held that confidentiality was a relevant factor at both stages of the test. The public interest in observing duties of confidence and maintaining the integrity of criminal investigations was properly considered in the balancing exercise.

Implications

This judgment establishes that persons under criminal investigation have, as a legitimate starting point, a reasonable expectation of privacy in information relating to that investigation prior to charge. This reflects and reinforces the existing practice of UK law enforcement bodies not to identify suspects before charge except in exceptional circumstances. The decision provides significant protection for those under investigation from media disclosure of information obtained from confidential law enforcement documents, whilst acknowledging that the starting point may be displaced by particular circumstances.

Verdict: Appeal dismissed. The Supreme Court unanimously upheld that ZXC had a reasonable expectation of privacy in information relating to the criminal investigation, and that publication of the Article by Bloomberg constituted misuse of private information. The damages award of £25,000 and injunction were upheld.

Source: Bloomberg LP v ZXC [2022] UKSC 5