ZXC v Bloomberg LP

A person who is suspected by a state enforcement body generally has a reasonable expectation of privacy in the fact of the investigation and its expressed basis until charge. This is a starting point, not an invariable rule. The expectation depends on all the circumstances and may be reduced or extinguished by the public nature of the activity or legitimate prior disclosure.

If privacy is engaged, the court must balance it against freedom of expression without giving either right automatic precedence. The decisive consideration is the publication’s contribution to a debate of general interest. Information about allegations of wrongdoing is distinct from information that an authority is investigating them. The confidentiality and provisional nature of investigative material may be relevant to both privacy and proportionality.

Bloomberg published information obtained almost entirely from a highly confidential letter of request sent by a United Kingdom law enforcement body to a foreign authority. The article identified the claimant as a suspect, described the authority’s preliminary suspicions and disclosed the banking and business records sought. The claimant had not been arrested or charged.

Nicklin J held that publication misused the claimant’s private information. He awarded £25,000 damages and restrained further publication identifying the claimant as the subject of the investigation. Bloomberg appealed, principally contending that business-related criminal suspicions were not private and that the public interest and its freedom of expression outweighed any privacy interest.

The central questions were whether a person under criminal investigation generally has a reasonable expectation of privacy before charge and, if so, how that interest should be balanced against the publisher’s rights under articles 8 and 10 of the European Convention on Human Rights.

1. Appeal dismissed. Simon LJ gave the leading judgment. Bean LJ agreed with both judgments, and Underhill LJ agreed with Simon LJ’s reasons while adding observations on the importance and difficulty of the issues.

2. Liability for misuse of private information involves two stages. The court first asks whether the claimant had a reasonable expectation of privacy. If so, it determines whether that interest must yield to freedom of expression. The first stage requires an objective assessment of what a reasonable person of ordinary sensibilities in the claimant’s position would feel. The enquiry is broad and fact-sensitive, and the interference must attain a sufficient level of seriousness.

3. A person who has merely come under suspicion by an organ of the state generally has a reasonable and objectively founded expectation of privacy in both that fact and the expressed basis of the suspicion. Public knowledge of an investigation readily creates stigma because suspicion may be equated with guilt. The protection is not confined to investigations of sexual or intrinsically personal conduct. It ordinarily extends to suspected business crime and does not generally depend on the suspect’s public characteristics.

4. The rule is not absolute. The individual circumstances may reduce or extinguish the expectation, including where the relevant activity is inherently public or the suspect’s identity has legitimately been released. The seven circumstances identified in Murray provide a useful framework, but not a rigid checklist. Here, the early and contingent stage of the investigation, the claimant’s lack of public prominence, the absence of consent and the source and strict confidentiality of the information supported privacy.

5. The confidentiality of a document does not itself make its contents private. It may nevertheless be highly relevant as part of the circumstances in which and purposes for which the publisher obtained the information. The judge therefore did not conflate privacy and confidence. He also correctly distinguished allegations of criminal conduct from information that an enforcement body was investigating the individual and had formed adverse preliminary views.

6. At the second stage, neither article 8 nor article 10 of the European Convention on Human Rights has automatic precedence. The court must focus closely on the comparative importance of the rights, the justifications for interfering with each and proportionality. The decisive factor is the publication’s contribution to a debate of general interest.

7. The judge recognised the strong public interest in corruption and in reporting the progress or deficiencies of a publicly funded investigation. That interest did not supply sufficient justification for publishing the confidential letter’s contents, targets and provisional conclusions. Editorial discretion does not authorise publication where the required public-interest justification is absent. The balancing assessment disclosed no legal error and was not open to appellate interference.

8. The damages award was not challenged. The Court expressed no view on whether £25,000 was an appropriate level of recovery.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2020] EWCA Civ 611. The finding of misuse of private information and the injunction were upheld.

2. High Court, Queen’s Bench Division: Nicklin J held on 17 April 2019 that Bloomberg had misused the claimant’s private information. He awarded £25,000 damages and granted an injunction. No neutral citation for that judgment is stated.

3. High Court, interlocutory application: Garnham J had previously refused an interim injunction. Nicklin J later found that material concerning the letter’s confidentiality and the investigating body’s objections had not been placed before Garnham J.