Bloomberg LP v ZXC UKSC 5
On 16 February 2022, the Supreme Court unanimously held that a person who has not been charged with an offence has a reasonable expectation of privacy in relation to information relating to a criminal investigation into his activities.
Following the decision, the losing appellant, the international financial and media organisation, Bloomberg ran an opinion piece entitled “U.K. Judges Are Helping the Next Robert Maxwell”.
In 2016 Bloomberg published an article about ZXC, the chief executive of a regional division of a public limited company, reporting that he was under investigation for possible offences under the Proceeds of Crime Act 2002, the Fraud Act 2006, corruption, bribery, and conspiracy. ZXC brought a claim for misuse of private information. Nicklin J found for ZXC, awarding damages of £25,000. Bloomberg’s appeal was dismissed by the Court of Appeal.
There were 3 issues before the Supreme Court: the main was whether there is a general rule that, prior to being charged, a person under criminal investigation has a reasonable expectation of privacy in information relating to that investigation.
After endorsing the need for a claimant first to establish the information in question is private, the Supreme Court’s judgment focussed on the first issue. It held that Nicklin J and the Court of Appeal had been correct to hold that “a reasonable expectation of privacy” is “the legitimate starting point”. That effectively decided the appeal as Nicklin J had not treated the source of the in formation as determinative (the second issue) and the third issue depended on there having been some error of law. The weight to be given to competing Article 8and Article 10 rights was not addressed; Nicklin J and the Court of Appeal had held that the balance landed in favour of ZXC. The Supreme Court emphasised that such determinations are fact sensitive
The decision is probably less far-reaching than suggested. The “general rule or legitimate starting point… is not a legal rule or legal presumption, let alone an irrebuttable presumption … [and will not]invariably lead to a finding that there was objectively a reasonable expectation of privacy in the information … [nor will it] invariably lead to a finding that there was objectively a reasonable expectation of privacy in the information.” The decision “does not obviate the need for the claimant to set out and to prove the circumstances establishing that there was objectively a reasonable expectation of privacy”. Starting from the general rule, a court must “thereafter consider by reference to all the circumstances of the case whether the reasonable expectation either does notarise at all or [is] significantly reduced”.
It may, however, make it easier to bring such privacy claims and add to the litigation uncertainties of the media in defending them. Appealing first instance decisions will be harder.