Bloomberg LP v ZXC

The Supreme Court dismissed Bloomberg's appeal. The Court endorsed the two-stage test for misuse of private information: (1) whether the claimant had a reasonable expectation of privacy, and (2) if so, whether that expectation was outweighed by the publisher’s article 10 rights. The Court accepted a legitimate starting point that, as a general rule, a person under criminal investigation prior to charge will have a reasonable expectation of privacy in information about that investigation, while emphasising that this is fact-specific and not a legal presumption. The confidentiality of the Letter of Request and the circumstances in which Bloomberg obtained it were important Murray-factor considerations. Applying the article 8/article 10 balancing exercise and giving weight to the public interest in maintaining investigative confidentiality, the Court concluded that the claimant’s article 8 rights prevailed on the facts.

Background and parties. The claimant (ZXC) was the chief executive of a regional division of a listed company (X Ltd). Bloomberg published an article in 2016 drawing almost exclusively on a confidential Letter of Request sent by a UK law enforcement body (UKLEB) to a foreign state describing a pre-charge criminal investigation into X Ltd and naming the claimant as a subject.

Relief sought and procedural posture. The claimant brought a claim for misuse of private information seeking damages and injunctive relief to restrain further publication. At first instance Nicklin J found for the claimant, awarded £25,000 damages and granted an injunction; Garnham J had earlier refused an interim injunction. The Court of Appeal dismissed Bloomberg’s appeal ([2020] EWCA Civ 611). Leave to appeal to the Supreme Court was granted and the appeal was heard in November/December 2021.

Issues. The court formulated three issues: (1) whether there is a general rule that persons under criminal investigation prior to charge have a reasonable expectation of privacy in respect of investigation-related information; (2) whether the fact that published information originated from a confidential law-enforcement document makes the material private or undermines reliance on public interest; and (3) whether the lower courts were wrong to find that the claimant had a reasonable expectation of privacy and that article 8 outweighed article 10.

Court’s reasoning.

• The Court reiterated the established two-stage test for misuse of private information and the utility of the Murray factors at stage one. It emphasised that whether article 8 is engaged is an objective, fact-specific enquiry.
• On issue (1) the Court accepted a legitimate starting point that, generally, information that a person is under criminal investigation prior to charge attracts a reasonable expectation of privacy; this is not an irrebuttable presumption and will be displaced or its weight reduced depending on the circumstances.
• On issue (2) the Court rejected Bloomberg’s submission that the existence of no breach of confidence claim meant confidentiality was irrelevant. The confidential provenance of the Letter of Request and the circumstances of acquisition are properly relevant to both stage one (Murray factor 7) and stage two; duties of confidence and the risk of prejudice to an active investigation are weighty public-interest factors.
• On issue (3) the Court found no error in the lower courts’ application of the Murray factors, their assessment of the claimant’s attributes and the nature and effect of publication, or in the balancing exercise. The confidential nature of the document, the manner in which Bloomberg acquired it and the lack of sufficient public-interest justification for disclosure meant article 8 prevailed on the facts.

Wider context. The Court noted the rarity and fact-specificity of the remedy, the significance of pre-charge anonymity policies and guidance (police/College of Policing, other authorities) and the interplay between privacy, confidentiality and freedom of expression under section 12(4) Human Rights Act 1998 and articles 8 and 10 ECHR.

Appeal dismissed. The Supreme Court upheld the Court of Appeal and High Court findings that, as a legitimate starting point, a person under criminal investigation prior to charge will generally have a reasonable expectation of privacy in information about that investigation; the confidentiality of the Letter of Request and the manner in which Bloomberg acquired and proposed to use it were material considerations. Applying the Murray factors and the article 8/article 10 balancing exercise, the claimant’s privacy rights prevailed on the facts.

Trial before Nicklin J, High Court (Queen's Bench) [2019] EWHC 970 (QB) (claim for misuse of private information; damages and injunction). Interim injunction application refused by Garnham J [2017] EWHC 328 (QB). Appeal dismissed by the Court of Appeal [2020] EWCA Civ 611. Appeal to the Supreme Court dismissed [2022] UKSC 5.