The Court of Appeal has today given judgment in the long-running ZXC v Bloomberg litigation ([2020] EWCA Civ 611). The key points:

1. In general, a person does have a reasonable expectation of privacy about the fact that/details of their being subject to a police investigation, up to the point of charge.
2. Reporting about alleged conduct is different from reporting about a criminal investigation into that conduct.

The Claimant, a US citizen, is a businessman who was among those being investigated by a UK Law Enforcement Body or ‘UKLEB’ (the specific identity of which is not indicated in the judgments, in order to protect the Claimant’s privacy).

Bloomberg published an article about that the Claimant and that investigation, based on a Letter of Request for Mutual Legal Assistance sent by UKLEB to another authority abroad (it is not clear how Bloomberg got hold of it). That Letter was expressly marked confidential, made clear that the investigation was at a preliminary stage and that the Claimant had not been arrested.

The Claimant had tried to get an injunction against publication, but Garnham J refused to grant one ([2017] EWHC 328 (QB); see here). The matter went to trial, focusing on the claim for misuse of private information. Nicklin J found in the Claimant’s favour ([2019] EWHC 970 (QB)), noting inter alia that Garnham J may well have granted an injunction if he had seen the Letter and if he had been aware of UKLEB’s protestations about what Bloomberg was up to.

Nicklin J held inter alia that in general, a person has a reasonable expectation of privacy about their being subject to a police investigation up to the point of charge.

Bloomberg’s appeal has been dismissed by the CoA. Its judgment is here: OPEN-APPROVED-JUDGMENT-in-ZXC-v-BLOOMBERG-A2.2019.1158.

The leading judgment of Simon LJ analysed the privacy claim according to the familiar two-stage test set out in for example McKennitt v Ash [2008] QB 73 (CA): (1) did the Claimant have a reasonable expectation of privacy here so as to engage his rights under Article 8 ECHR, and (2) if so, did Bloomberg’s Article 10 rights outweigh the Claimant’s Article 8 rights?

Stage 1: reasonable expectation of privacy

There are no neat formulae for determining whether this ‘elastic’ right is engaged. One has to look at various factors. Some key points here:

• Although the Claimant held a senior position in X Ltd, which at the time was a publicly listed company, he was not a director and achieved no particular prominence in his role within the company. The CoA’s discussion of the distinction between personal and professional life is important.
• The Claimant was not objecting to reporting about his alleged conduct – what he objected to was reporting about the UKLEB investigation into him. None of that was public.
• While the consequences of publication had not been devastating or life changing, they did have a significant adverse impact on his autonomy and reputation.
• Crucially here, the information about the Claimant came from a confidential and clearly preliminary report by a law enforcement agency (resonances here with Cliff Richard v BBC, the analysis in which was approved here).

The Claimant’s privacy rights were thus engaged, and Bloomberg’s criticisms of Nicklin J’s analysis were misplaced.

There is also a useful discussion in Simon LJ’s judgment about distinctions between the concepts of confidentiality and privacy (which had not been conflated by Nicklin J).

Here is an important general statement from Simon LJ (para 82):

“… I would take the opportunity to make clear that those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty.”

See also this at para 84:

“… the reasonable expectation of privacy is not in general dependant on the type of crime being investigated or the public characteristics of the suspect (for example, engagement in politics or business)… To be suspected of a crime is damaging whatever the nature of the crime: it is sensitive personal information and there can be little justification for a hierarchy of offences giving rise to suspicion; although I would accept that there may be some cases where the reasonable expectation of privacy may be significantly reduced, perhaps even to extinction, due to the public nature of the activity under consideration.”

Stage 2: justification for the privacy intrusion

Again, the principles here are familiar – see for example Axel Springer v Germany [2012] EMLR 15 on the balancing exercise as between the competing rights.

In this case, the CoA held that Nicklin J’s analysis of the competing factors was careful and nuanced, and should not be interfered with. A pivotal issue was honing in on exactly what Bloomberg needed to justify: “what Bloomberg had to show was that there was a sufficient public interest in revealing the information about the UKLEB’s investigation drawn from the LoR such as to outweigh the reasonable expectation of privacy in relation to that information” (my emphasis).

In other words, in this case, one needed to focus not on the alleged conduct, but on the specific information that was being reported, i.e. information about the investigation. For that information, the balance tipped in the Claimant’s favour.

Underhill LJ did not find this an easy case, but agreed with Simon LJ (as did Bean LJ). His observations included discomfort with “elusive concepts of ‘psychological [or social] integrity’ and ‘personal autonomy”: in other words, privacy is privacy, and you don’t need to get bogged down in deconstructing what it means.

You do, however, need to be careful about this distinction: “information that an individual is the subject of a formal criminal investigation is genuinely of a different character from allegations about the conduct being investigated”. Bloomberg argued that this was an artificial distinction, but the CoA disagreed. The distinction was pivotal to the analysis in this case, and underpins the general presumption that there will be an expectation of privacy when it comes to investigations, until the individual is charged.

Robin Hopkins @hopkinsrobin