Suspects have a reasonable expectation of privacy over investigations

ZXC v Bloomberg (15 May 2020)

The English Court of Appeal has confirmed that, in general, a person suspected by a state law enforcement body of committing a criminal offence has a reasonable expectation of privacy in relation to that fact, and to an expression of the basis of that suspicion. This is significant for people being investigated, and for media organisations reporting arrests and criminal investigations. Media lawyers need to consider not only defamation and contempt, but also privacy. 

Facts

The Claimant, a US citizen, worked for a UK company X Limited, where he was the Chief Executive of a division, but not a director. A UK Legal Enforcement Body (UKLEB), investigating X Limited had sent a Letter of Request (LoR) to a foreign state asking for Mutual Legal Assistance. The LoR included that the UKLEB was carrying out a fraud and corruption investigation into X Limited and various individuals, including the Claimant. The LoR was expressly marked 'Confidential' and stated that disclosure of its contents could prejudice the investigation.

Bloomberg obtained a copy of the LoR. It contacted the UKLEB, which objected to publication. Bloomberg published anyway. The article contained information almost entirely drawn from the LoR. The Claimant applied for an interim injunction, but this was refused. Following trial, the judge (Nicklin J) held that:

• The LoR was a highly confidential document, the disclosure of which could prejudice the investigation.
• The interim injunction ought to have been granted; Bloomberg and its solicitors did not fully disclose certain matters to the court at the interim injunction stage. 
• The Claimant had a reasonable expectation of privacy that the contents of the LoR concerning him would not be published.
• On the balancing exercise, the Claimant's privacy right outweighed Bloomberg's right of freedom of expression.

Issues on appeal

Bloomberg's grounds of appeal included that:

• the judge was wrong to hold that "in general, a person does have a reasonable expectation of privacy in a police investigation up to the point of charge"
• the judge erred in finding that the Claimant had a reasonable expectation of privacy on the facts, and
• the judge erred in carrying out the balancing exercise by giving Bloomberg's Article 10 rights too little weight.

Held

The Court of Appeal applied the two-stage test for a privacy claim:

Stage one – Does the Claimant have a reasonable expectation of privacy?

The Court of Appeal confirmed Nicklin J's view, which followed the ruling in Cliff Richard v BBC (2018), that the starting point is that criminal suspects who have not been charged have a reasonable expectation of privacy. However, this general rule is not invariable and each case turns on its facts. Simon LJ said:

• "…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. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and 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 reasonable expectation of privacy is not in general dependant on the type of crime being investigated or the public characteristics of the suspect (for example, engagement in politics or business)....To be suspected of a crime is damaging whatever the nature of the crime."

However, Simon LJ acknowledged that the reasonable expectation may be reduced or extinguished due to, for example, the public nature of the activity (eg rioting, electoral fraud, an armed bank robber who held hostages in a televised 3-day siege or where the suspect's name was legitimately released by the police for operational reasons).

The Court of Appeal held that the judge had taken into account all relevant factors at stage one and there was no error of law.

Stage two – Must the Claimant's right of privacy yield to Bloomberg's right of freedom of expression (the balancing exercise)?

On the balancing exercise, the Court of Appeal agreed with the judge that the UKLEB's investigation into X Limited was a matter of public interest and that the Claimant was not trying to stop what was already in the public domain. The judge had attached significant weight to the high public interest in information about corruption in the Foreign State and the possible involvement of X Limited and its staff.

However, Bloomberg should have appreciated that the LoR was highly confidential. There was nothing preventing Bloomberg from reporting on corruption in the foreign state, or from investigating the issue itself. However, the public interest in publishing such matters was not directly relevant to the question the judge had to address – namely, whether there was an overriding public interest in publishing information from the LoR about the Claimant.

In summary, the judge's "assessment of the factors weighing in favour of the Claimant's article 8 rights and Bloomberg's countervailing article 10 rights was thorough and nuanced" and Bloomberg's grounds of appeal were rejected. 

Comment

Key lessons include:

• This is the first time that an English appeal court has confirmed this principle of law. Unless overruled by the UK Supreme Court, it is binding on all courts of first instance.
• It is not sufficient to only consider defamation/truth when reporting on criminal allegations/arrests. When naming or otherwise identifying suspects, it also necessary to consider privacy law. The starting point of a privacy claim is whether information is private, not whether it is true. So, for example, giving a person a right of reply prior to publication is not a sufficient solution.
• In general, media outlets coming into possession of documents containing private and/or confidential information should weigh up the public interest in privacy/confidentiality against the public interest in disclosure.
• The general rule of a reasonable expectation of privacy applies only until the suspect has been charged. At that point, the general rule is likely to be the other way round – namely, that the person does not have a reasonable expectation of privacy subject to any exceptions (eg where there are also reporting restrictions). 
• The Claimant had accepted that if he did not succeed in his privacy claim, then he would not succeed in his claim for confidentiality or under the Data Protection Act 1998 (which would now be considered under the GDPR). So far, the English courts have not generally found there to be a material difference, in media cases, between the ambit of privacy and data protection claims.