ZXC v Bloomberg LP

In an application to remove online reporting, the court applied the two-stage misuse of private information inquiry: whether the claimant had a reasonable expectation of privacy, followed by a fact-sensitive balance between privacy and freedom of expression.

There is no blanket rule that a suspect can never have a reasonable expectation of privacy in the fact of a law-enforcement investigation. Relevant circumstances include confidentiality, whether the investigation is public, arrest or questioning, consent, the claimant’s attributes and the likely impact of publication.

Even where Article 8 is engaged, serious journalism concerning a public investigation may attract substantial Article 10 weight. The claim failed because that weight outweighed the claimant’s privacy interests. The Data Protection Act 1998 claim also failed because the journalistic exemption applied.

The claimant, anonymised as ZXC, applied for an interim order requiring Bloomberg LP to remove an online article referring to his involvement in an ongoing law-enforcement investigation. He relied on misuse of private information and section 10 of the Data Protection Act 1998.

Bloomberg relied on freedom of expression and contended that the claimant had no reasonable expectation of privacy in the fact that he was being investigated. It also relied on the journalistic exemption in section 32 of the Act.

The issues were whether the claimant was likely to establish a reasonable expectation of privacy and succeed at trial, whether the Article 8 and Article 10 rights should be balanced in his favour, and whether the section 32 exemption defeated the data-protection claim.

1. Application dismissed. The claimant was unlikely to succeed at trial in obtaining removal of the article.
2. The court adopted the two-stage approach summarised in ERY v Associated Newspapers [2016] EWHC 2760. First, the question was whether the claimant had a reasonable expectation of privacy. Secondly, the court had to balance the claimant’s Article 8 rights against Bloomberg’s Article 10 rights, applying an intense focus to the particular facts. Neither right had presumptive priority.
3. There was no blanket rule that a person suspected of offending could not have a reasonable expectation of privacy in the fact of an investigation. The inquiry was objective and fact-sensitive. Relevant factors included the claimant’s attributes, the nature of the activity, the purpose and circumstances of the intrusion, absence of consent, the effect on the claimant, the circumstances in which the information came to the publisher, the confidentiality of the source material, whether the investigation had been made public, and whether the claimant had been arrested or questioned publicly.
4. The claimant was a businessman rather than a celebrity, the document was highly confidential, the investigation was unfinished, and the information appeared to have been leaked. Those factors meant that he was likely to establish an Article 8 interest. However, the weight of that interest was reduced because related information was already public, publication had occurred for some time, the claimant had not promptly objected, the article did not allege guilt, and the evidence of additional harm caused by continued online availability was limited.
5. Bloomberg’s Article 10 rights carried substantial weight. The article concerned serious journalism about alleged bribery, fraud and corruption, and identification of the claimant was a legitimate journalistic choice relevant to the credibility and substance of the report. The public interest in confidentiality and the fact that the article was not whistleblowing journalism reduced that weight, but did not reverse the balance. The Article 10 interests comfortably outweighed the Article 8 interests.
6. The claim under section 10 of the Data Protection Act 1998 also failed. Bloomberg had processed the data for journalistic purposes and reasonably believed, having regard to the special importance of freedom of expression, that publication was in the public interest and that compliance with the relevant provisions was incompatible with those purposes. The claimant was unlikely to overcome the section 32 exemption.

First-instance application before the High Court. The claimant intimated an intention to appeal, but no appellate decision was stated in the judgment.