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Right to Privacy Of Suspects Overrides Journalistic Right to Report

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Right to Privacy Of Suspects Overrides Journalistic Right to Report

Right to Privacy Of Suspects Overrides Journalistic Right to Report

A dispute between Bloomberg News and a businessperson (identified to the court as ZXC) has been concluded firmly by the Supreme Court on the side of the businessperson, dismissing Bloomberg's appeal.

The Supreme Court concluded a six-year long dispute this February, weighing a newspaper's Article 10 rights to freedom of expression against an individual's Article 8 rights to privacy.

The question that rested on the court in Bloomberg v ZXC ([2022] UKSC 5) was whether a person under criminal investigation could claim a reasonable expectation of privacy in respect of information relating to that investigation.

ZXC was a senior executive in a company whose activities in a foreign country attracted the attention of a UK law enforcement body in 2013. During the course of its investigation, a confidential document was produced. This document made for the source material of an article that Bloomberg sought to publicise, highlighting the details of the investigation and criminal offences that ZXC was alleged to have committed.

ZXC would go on to sue Bloomberg, claiming and winning injunctive relief and damages against Bloomberg at first instance and the Court of Appeal for the misuse of their private information. This was appealed to the Supreme Court by Bloomberg.

The Legal Bit

The Supreme Court considered three key issues relating to the misuse of private information in making its decision.

1. Is there a general rule that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation?

On this point, the court noted the increasingly "uniform general practice by state investigatory bodies not to identify those under investigation prior to charge." The fact of this being the norm adds weight to the idea that privacy is a reasonable expectation.

2. Does the fact that information published by Bloomberg about a criminal investigation originating from a confidential document undermine Bloomberg's public interest to disclose the information?

The Court makes one point clear: confidentiality is not a silver bullet, but just one important and relevant factor that should be taken into consideration when deciding whether to disclose. It doesn't establish a legal presumption, but is regarded as a legitimate starting point and to that extent does affect Bloomberg's position.

3. ZXC have a reasonable expectation of privacy that weighs in their favour when balanced against Bloomberg's right to freedom of expression?

The answers to issues (1) and (2) point us to an unsurprising conclusion: ZXC (a) has a reasonable expectation of privacy particularly assisted by the information source being a confidential document, as well as the general practice of investigatory bodies not to disclose the identity of a suspect, and that (b) this balances in their favour against Bloomberg's right to freedom of expression.

Further Thoughts

This ruling is likely to be unpopular in media circles, although welcomed by innocent suspects wary of reputational damage. Courts are particularly conscious of the effects of such damage, but the ruling also attracts criticism about the nature of public scrutiny, particularly as it concerned a high-profile individual in their activities concerning their businesses – an area where public interest might have merit.

Get in touch

This article was prepared by Meer Gala-Shah.

If you have any queries, or require any advice on issues you may be facing in the Technology & Data sector, please contact Matthew Holman

If you would like to read the full judgement, then click here.