ZXC v Bloomberg L.P.

A person will generally have a reasonable expectation of privacy in the fact and details of a criminal investigation concerning them before charge. That expectation is fact-sensitive and may be displaced by matters such as legitimate identification or highly public conduct. The court must separate the privacy inquiry from the Article 10 balancing exercise. Publication of confidential investigative material requires a specific public interest justification, not merely a general public interest in the subject matter. Where the information consists of provisional investigative suspicions and conclusions, and publication risks harming the investigation and the suspect’s privacy, the balance may favour restriction. An injunction may remain useful even after publication, particularly where the dissemination has been limited or the failure to obtain interim relief resulted from material non-disclosure.

The claimant, an anonymised senior employee of a company under investigation for suspected corruption, brought a claim for misuse of private information against Bloomberg L.P. Bloomberg published material derived from a confidential Letter of Request sent by a UK law-enforcement body to a foreign authority. The material identified the claimant as a suspect and reported the investigators’ provisional suspicions and conclusions. No charges had been brought.

The claimant had unsuccessfully sought an interim injunction before Garnham J. At trial, the court considered whether the claimant had a reasonable expectation of privacy in the information and, if so, whether Bloomberg’s Article 10 rights justified publication. The court also considered the effect of failures to disclose the Letter of Request and the law-enforcement body’s objections at the interim stage.

1. Claim succeeded. The claimant had a reasonable expectation of privacy in the fact and details of the investigation. The assessment was objective and fact-sensitive. Although the claimant held a senior business role, he was not a public office-holder and had no particular public prominence.

2. The weightiest factor was the manner in which the information came into Bloomberg’s possession. The Letter of Request was a highly confidential state-to-state document concerning an ongoing investigation. It contained provisional assessments of evidence and suspicions which might later be revised or abandoned. Pre-charge identification also carried a recognised risk of unfair reputational harm.

3. The Article 10 balancing exercise required intense focus on the comparative importance of the competing rights. The general public interest in corruption and in reporting the progress of a publicly funded investigation did not justify publishing the particular information. Bloomberg could report on the wider subject, investigate independently, or criticise the investigation without disclosing the confidential contents of the Letter of Request.

4. The confidentiality of the Letter of Request was a substantial factor. The circumstances in which Bloomberg obtained it imposed a general obligation to respect its confidentiality, although confidentiality was not absolute. Any publication would require a fact-specific and proportionate assessment of the public interest in disclosure.

5. The court found serious failures of candour at the interim injunction application. The description that the journalist had been shown the Letter of Request obscured that he had retained a copy. Bloomberg also failed to disclose the law-enforcement body’s serious objections to publication. The interim judge had therefore proceeded on materially incorrect facts, and an injunction would probably have been granted had the true position been disclosed.

6. An injunction remained useful notwithstanding the passage of time and publication elsewhere. The extent of dissemination was limited, and the defendant could not rely on further publication resulting from the earlier failure to disclose material facts. The terms of the injunction were to be determined after submissions.

7. In assessing damages, distress, invasion of privacy, dignity, standing and the nature, scope and presentation of the publication were relevant. Pure compensation for, or vindication of, reputation could not ordinarily be awarded in a misuse of private information claim where the defendant had not been permitted to defend the underlying allegations as true. Damages were assessed at £25,000.