In an important decision that will have profound implications for media reporting as well as for individuals subject to criminal investigation, the Supreme Court has today held that, as a legitimate starting point, a person under criminal investigation has a reasonable expectation of privacy in respect of information relating to that investigation. In so doing the Court rejected Bloomberg’s appeal and upheld the decision of Mr Justice Nicklin, who awarded £25,000 for misuse of private information to ZXC, as well as the judgment of the Court of Appeal. The principle applies prior to charge. After charge the open justice principle generally means the information is of an essentially public nature. However, prior to charge, such information is, as with information concerning a person’s health, generally considered to be private.
In a lengthy ruling, the Supreme Court confirmed that Article 8 ECHR encompasses a ‘reputational’ dimension which, while primarily protected by the tort of defamation, is also protected by the tort of misuse of private information if the claimed harm attains a certain level of seriousness. The fact that ZXC was a businessman actively involved in the affairs of a large company meant that the limits of acceptable criticism of him were wider than in respect of a private individual. However the Court held that that factor must be weighed against the effect of the publication on him. The Justices stated in respect of this factor that it “would anticipate greater damage to a businessperson actively involved in the affairs of a large public company than to a private individual”.
This is a long running claim which arose as a result of an article by Bloomberg published in 2016 which set out details of a criminal investigation into ZXC lifted from a confidential Letter of Request issued by a UK law enforcement body seeking mutual legal assistance from a foreign state. The criminal investigation commenced in 2013 but to date ZXC has not been arrested, still less charged. The trial took place in November 2018 with Nicklin J. holding that the public interest lay in not publishing the contents of the Letter of Request given the importance of maintaining the confidentiality of a live criminal investigation.
Following the Court of Appeal’s decision, the media had already been more cautious about reporting the names and details of those who has been suspected of criminal activities or arrested. The fact that this principle has now been confirmed by the Supreme Court means that such reports cannot lawfully be made unless the media can point to some good reason why the legitimate starting point should not apply, or the Article 10 rights of the media outweigh the suspect’s Article 8 rights on the facts of the particular case.
Tim Owen QC, Sara Mansoori and Edward Craven of Matrix acted for ZXC, instructed by David Byrne.
Antony White QC of Matrix acted for Bloomberg, instructed by RPC LLP