The UK Supreme Court has delivered an important judgment¹ which confirms that those (including business people) under criminal investigation have a reasonable expectation of privacy in respect of information relating to that investigation prior to being charged. This is at least the starting point when considering whether there has been any misuse of private information.

The Facts

An individual named ZXC was an American citizen with indefinite leave to remain in the UK since 2014. He worked for a publicly listed company which operated overseas in several foreign countries (X Ltd) and became the chief executive (albeit not a director) of one of its regional divisions.

In 2016, Bloomberg published an article relating to the activities of X Ltd in a particular country for which ZXC’s division was responsible (the Foreign State). These activities had been the subject of a criminal investigation into alleged fraud, bribery and corruption since 2013 by a UK law enforcement body (UKLEB). The article stated that ZXC had been interviewed as part of UKLEB’s investigation and the information in the article was almost exclusively drawn from a confidential Letter of Request for mutual legal assistance sent by the UKLEB to the Foreign State. The Letter of Request included a summary of the UKLEB’s investigation and its initial conclusions.

ZXC brought a claim against Bloomberg for misuse of private information by publishing the article, seeking damages and injunctive relief to prevent further publication of the article.

One of the issues for determination by the Supreme Court was whether an individual who had not yet been charged with a criminal offence could have a reasonable expectation of privacy.

The Decision

The Supreme Court confirmed that whether there has been a misuse of private information is determined by applying a two-stage test. The court must examine (i) if the claimant has a reasonable expectation of privacy in relation to the relevant information and, if so (ii) whether that expectation is outweighed by the publisher’s right to freedom of expression.

A reasonable expectation of privacy

The Supreme Court concluded as a “legitimate starting point” that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation. However, whether such an expectation in fact exists is an objective question which will be subject to a fact-specific enquiry, requiring an evaluation of the circumstances of each case. Amongst those circumstances would be:

• the attributes of the individual;
• the nature of the activity in which the individual was engaged;
• the place at which it was happening;
• the nature and purpose of the intrusion;
• the absence of consent and whether it was known or could be inferred;
• the effect on the individual; and
• the circumstances in which and the purposes for which the information came into the hands of the publisher.

Whilst the Supreme Court noted that the status of ZXC as a businessman actively involved in the affairs of a large public company meant that the limits of acceptable criticism of him were wider than in respect of a private individual, the effect of publication of information that an individual is under criminal investigation is that damage will occur, whatever the individual’s characteristics or status.

Any reasonable expectation of privacy would cease once an individual is charged with a criminal offence, the principle of open justice meaning that such information is of a public nature.

The balancing exercise

Whilst the Supreme Court did not have to consider this element, assuming that there is a reasonable expectation of privacy, the second stage in determining whether there has been a misuse of private information involves a balancing of the individual’s right to private life under Article 8 of the European Convention of Human Rights against the publisher’s right to freedom of expression under Article 10. Relevant factors when conducting this balancing exercise would be:

• how well-known is the individual concerned and what is the subject of the report;
• the prior conduct of the individual concerned;
• the method of obtaining the information and its veracity;
• the content, form and consequences of publication; and
• the severity of the restriction or interference and its proportionality with the exercise of the freedom of expression.

The extent to which publication is in the public interest will be of central importance.

Conclusions

The Supreme Court has provided some comfort for those whose work or professional affairs become subject to criminal investigation, namely that at least as a starting point they can expect information about the investigation to be kept private before any charges are brought. Its judgment shows that the English courts are aware of the irremediable reputational damage that can be caused if an investigation is publicised before its conclusion. Whilst the judgment arose in the context of a criminal investigation, it is likely that the courts would adopt the same approach in respect of regulatory investigations more broadly.

Even so, the existence of a reasonable expectation of privacy is only the starting point; it is not a default position or legal presumption. In each case the English courts will embark on an assessment of the relevant circumstances to determine whether such an expectation actually exists and, if it does, whether it outweighs the publisher’s right to freedom of expression.

The authors are grateful to Verity Spragge, Trainee Solicitor in London, for her valuable contribution to this OnPoint.

Endnotes:

1) Bloomberg LP v ZXC [2022] UKSC 5