Bloomberg LP v ZXC

In misuse of private information, information that a person is under criminal investigation by a state body before charge carries a legitimate starting point of a reasonable expectation of privacy. This is neither a legal presumption nor an invariable rule. The court must still assess all the circumstances objectively.

Reputational harm can engage article 8 where it is sufficiently serious and prejudices private life, including professional or business life. Defamation’s hypothetical-reader rules do not govern this enquiry. Confidential origin does not itself make information private, but confidentiality may strongly support privacy at stage one and weigh against publication at stage two. Article 8 and article 10 have equal status. Their comparative importance, the justifications for interference and proportionality must be assessed in the particular case.

Bloomberg LP v ZXC concerned an article based almost entirely on a confidential letter through which a United Kingdom law enforcement body sought overseas assistance in an ongoing criminal investigation. The article identified the respondent as a suspect and disclosed the investigators’ preliminary assessment of evidence. He had not been charged.

The High Court upheld the claim for misuse of private information, awarded £25,000 and restrained further publication: [2019] EWHC 970 (QB); [2019] EMLR 20. The Court of Appeal dismissed the publisher’s appeal: [2020] EWCA Civ 611; [2021] QB 28.

The Supreme Court considered whether pre-charge criminal-investigation information generally attracts a reasonable expectation of privacy; whether the source document’s confidentiality was relevant despite the absence of a breach-of-confidence claim; and whether the courts below had properly balanced the respondent’s article 8 rights against the publisher’s article 10 rights.

1. Appeal dismissed unanimously. Lord Hamblen and Lord Stephens delivered the joint judgment, with which Lord Reed, Lord Lloyd-Jones and Lord Sales agreed. The High Court and Court of Appeal had applied the correct legal approach.

2. At stage one of the tort of misuse of private information, information that a person is under criminal investigation by an organ of the state before charge attracts a legitimate starting point that there is a reasonable expectation of privacy. This is not a legal presumption and does not determine the result. The claimant must establish the relevant circumstances, and the court must undertake an open-textured, fact-specific assessment of all those circumstances. The factors identified in Murray v Express Newspapers plc [2008] EWCA Civ 446 are non-exhaustive and carry no predetermined weight.

3. The starting point reflects judicial experience and the established practice of investigatory bodies. Publication of official suspicion ordinarily causes reputational and other harm, potentially affecting dignity, personal autonomy, family life and social or professional relationships. The legal presumption of innocence does not establish how the public will react outside criminal proceedings. Rules governing the hypothetical reasonable reader in defamation therefore cannot be imported into the distinct tort of misuse of private information.

4. Reputation falls within private life protected by article 8 of the European Convention on Human Rights where the attack is sufficiently serious and prejudices personal enjoyment of private life. Professional and business activities are not excluded. A prominent business role may widen the limits of acceptable scrutiny, but it remains only one circumstance. Harm arising foreseeably from established wrongdoing may weigh against privacy, but an unproven investigation is materially different. After charge, the open justice principle generally makes the information public.

5. Misuse of private information and breach of confidence are distinct causes of action. Information may be private without being confidential, or confidential without being private. Confidentiality may nevertheless be highly relevant to whether a privacy expectation is reasonable. The confidential character of the letter and the circumstances in which it reached the publisher were properly considered, but were not treated as determinative.

6. At stage two, the public interest in observing duties of confidence was properly weighed against freedom of expression. It strengthened the justification for restricting publication and weakened the justification for interfering with privacy, particularly because disclosure risked prejudicing the investigation. There was insufficient public interest in publishing the confidential investigators’ suspicions. As the balancing exercise had been undertaken on a correct basis, it did not readily attract appellate intervention. The injunction and damages award therefore remained in force.

1. United Kingdom Supreme Court: In Bloomberg LP v ZXC [2022] UKSC 5, the court unanimously dismissed Bloomberg’s appeal and affirmed the Court of Appeal’s decision.

2. Court of Appeal: The court dismissed Bloomberg’s appeal from the trial judgment on all grounds: [2020] EWCA Civ 611; [2021] QB 28.

3. High Court, trial: Nicklin J upheld the claim for misuse of private information, awarded £25,000 and granted an injunction against further publication in England and Wales: [2019] EWHC 970 (QB); [2019] EMLR 20.

4. High Court, interim application: Garnham J had earlier refused an interim injunction: [2017] EWHC 328 (QB); [2017] EMLR 21. The trial judge later found that material information had not been placed before Garnham J and that the injunction would probably otherwise have been granted.