Bloomberg v ZXC – the Supreme Court decides — Aileen McColgan QC

24 February 2022 by

The UKHRB is grateful to Aileen McColgan QC for allowing us to republish her article, which originally appeared on Panoptican, a blog published by the barristers at 11KBW here.

The central question for the Supreme Court in Bloomberg v ZXC [2022] UKSC 5 was, as Lords Hamblen and Stephens put it (with Lord Reeds, Lloyd-Jones and Sales agreeing): “whether, in general, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation”. The short answer was “yes”.

The decision has been greeted with howls of indignation from Bloomberg but more muted responses from other sections of the press; whereas Bloomberg’s editor in chief released an editorial entitled “U.K. Judges Are Helping the Next Robert Maxwell” which stated that the judgment should “frighten every decent journalist in Britain”, the Financial Times and Guardian  were more restrained, pointing out respectively that the decision would have “far-reaching implications for the British media” and would “make it harder for British media outlets to publish information about individuals subject to criminal investigations”. This is no doubt the case, but it is worth noting that the publication which gave rise to this decision was based on a highly confidential letter leaked to Bloomberg and occurred apparently without any consideration of ZXC’s privacy interests.

ZXC, regional CEO of a publicly listed company which operated overseas (“X Ltd”), sued for misuse of private information because of an article concerning X Ltd’s activities in a country for which ZXC’s division was responsible. The activities had been subject to a criminal investigation by a UK law enforcement body (“the UKLEB”) since 2013 and the article was based almost completely on a confidential Letter of Request sent by the UKLEB to the foreign state. ZXC claimed that he had a reasonable expectation of privacy in information published in the Article, in particular in the details of the UKLEB investigation into himself, its assessment of the evidence, the fact that it believed that ZXC had committed specified criminal offences and its explanation of how the evidence it sought would assist its investigation into that suspected offending. ZXC’s application for damages and injunctive relief was upheld at first instance by Nicklin J and £25,000 awarded: [2019] EWHC 970 (QB); [2019] EMLR  20. Bloomberg’s appear was dismissed (see Panopticon post by Robin Hopkins and [2020] EWCA Civ 611; [2021] QB 28.

At §§8-25 the Supreme Court rehearsed the factual background, noting Nicklin J’s finding that the Letter of Request had been given to the journalist “in what must have been (and should have been recognised as) a serious breach of confidence by the person who originally supplied it” and the fact that, while the UKLEB had “repeatedly expressed concerns” that the publication might prejudice a criminal investigation, none of  the pre-publication correspondence recognised the “highly confidential nature” of the letter or indicated (as Bloomberg’s witnesses were later to suggest) that “there was a careful (or indeed any) assessment of the potential consequences of breaching that confidentiality or any weighing-up of this against the perceived public interest in publication” (§§18 and 20, citing Nicklin J’s judgment at §51). The judge had found at §§59-60 that “no-one at [Bloomberg] involved in publication of the Article was aware of just how sensitive the LoR was… Equally the evidence strongly suggests that the editorial process of [Bloomberg] simply failed to appreciate that the Article potentially engaged the privacy interests of the Claimant …”

At §§26-33 the Court dealt with the first instance judgment, noting Nicklin J’s finding that “it is now possible to say that, in general, a person does have a reasonable expectation of privacy in a police investigation up to the point of charge” (§119) and that ZXC had had such an expectation (§125). He had accepted that possible involvement by X Ltd and its employees  in corruption in the foreign state was a matter of “high public interest’ but that this had only an “indirect” bearing in this case because “the Article was not presenting the fruits of an investigation by [Bloomberg] into this alleged corruption”, being concerned rather with the identity of “the targets of the UKLEB investigation and the UKLEB’s suspicions based on evidence it had gathered” (§126). Nicklin J had also accepted that the investigation into X Ltd was itself a matter of public interest, and that there was a clear public interest in the media following and reporting on “developments” in the investigation but “noted … that the Article had not made any ‘criticism’ of the investigation (such as ‘inadequacies in the investigation, undue delay or concern over the direction the investigation was taking’ or if ‘investigators had been subjected to improper political pressure not to pursue certain people or lines of inquiry’ which the media could legitimately be expected to highlight in its role as a ‘watchdog’” (§30, citing §§128-130 of Nicklin J’s judgment)). The judge had concluded that ZXC’s Article 8 rights outweighed Bloomberg’s Article 10 rights and that the fact that Bloomberg had failed to appreciate the confidential nature of the Letter of Request “does not alter this fundamental position” (§129).

At §§34-42 the Court considered the judgment of the Court of Appeal before setting out the legal framework relating to misuse of private information. It identified the issues for determination as follows (§63):

(1) Whether the Court of Appeal was wrong to hold that there is a general rule, applicable in the present case, that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.

(2) Whether the Court of Appeal was wrong to hold that, in a case in which a claim for breach of confidence was not pursued, the fact that information published by Bloomberg about a criminal investigation originated from a confidential law enforcement document rendered the information private and/or undermined Bloomberg’s ability to rely on the public interest in its disclosure.

(3) Whether the Court of Appeal was wrong to uphold the findings of Nicklin J that the claimant had a reasonable expectation of privacy in relation to the published information complained of, and that the article 8/10 balancing exercise came down in favour of the claimant.

At §§43-62 the Court set out the legal framework relating to misuse of private information, referring to the decisions in Campbell v MGN Ltd [2004] UKHL 22; [2004] 2 AC 457, Douglas v Hello! Ltd (No 3) [2007] UKHL 21; [2008] AC 1, §255, Vidal-Hall v Google Inc [2015] EWCA Civ 311; [2016] QB 1003, and McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73 and at §§48-62 discussing the “well-established” two stage test applied by the courts below.

Dealing with stage 1, the Court ruled at §49 that “[w]hether there is a reasonable expectation of privacy is an objective question”, the expectation being “that of a reasonable person of ordinary sensibilities placed in the same position as the claimant and faced with the same publicity” (citing Campbell §99 per Lord Hope; Murray v Express Newspapers plc [2008] EWCA Civ 446; [2009] Ch 481 §35).  At §50 it set out the (non-exhaustive) factors referred to by the Court of Appeal in Murray which had (§51) “been regularly considered and applied by the courts by way of guidance … the appropriateness of so doing [having been] affirmed by the majority of the Supreme Court in In re JR38 [2015] UKSC 42; [2016] AC 113”. And at §52 it referred to the suggestion made in Gatley on Libel and Slander, (12th ed) §22.5 that:

“there are certain types of information which will normally, but not invariably, be regarded as giving rise to a reasonable expectation of privacy so as to be characterised as being private in character. These are the state of a person’s physical or mental health or condition; a person’s physical characteristics (nudity); a person’s racial or ethnic characteristics; a person’s emotional state (in particular in the context of distress, injury or bereavement); the generality of personal and family relationships; a person’s sexual orientation; the intimate details of personal relationships; information conveyed in the course of personal relationships; a person’s political opinions and affiliations; a person’s religious commitment; personal financial and tax related information; personal communications and correspondence; matters pertaining to the home; past involvement in criminal behaviour; involvement in civil litigation concerning private affairs; and involvement in crime as a victim or a witness”.

[By contrast (§53, still citing Gatley)] “there are some types of information which will normally not be regarded as giving rise to a reasonable expectation of privacy so as not to be characterised as being private in character, namely: corporate information, a person’s physical location, involvement in current criminal activity, a person’s misperformance of a public role, information deriving from a hearing of a criminal case conducted in public, and the identity of an author”.

The judgment also made reference in relation to stage 1 to whether information was in the public domain, and to the effect of publication of the claimant which “must attain a sufficient level of seriousness for article 8 to be engaged”.

As to stage 2 the Court reiterated Lord Hoffmann’s statement in Campbell §55 that there was “no question of automatic priority” between Articles 8 and 10 nor any “presumption in favour of one rather than the other. The question is rather the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other. And the extent of the qualification must be proportionate to the need”, also referring Lord Steyn in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, §17. At §61 the Court identified as “of central importance” the “extent to which publication is in the public interest” including in particular (§62) “the contribution that publication will make to a debate of general interest is a factor of particular importance” (citing Von Hannover v Germany [2004] EMLR 21 and Axel Springer [2020] EMLR 15), referring also the various other factors identified in Axel Springer.

Having undertaken this exposition of the legal principles the Court went on at §§64-146 to deal with the main issue in the case (issue 1 above). The court stressed at §§67-69 that “the general rule or legitimate starting point is not a legal rule or legal presumption, let alone an irrebuttable presumption” (emphasis added), that “[t]he determination as to whether there is a reasonable expectation of privacy in the relevant information is a fact-specific enquiry”, and did 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”. At §77 the court recorded as “common ground that if someone is charged with a criminal offence there can be no reasonable expectation of privacy” before going onto chart the growing consensus among public bodies (including the College of Policing, the IOPC, the Commissioner of the Metropolitan Police and the Crown Prosecution Service) and judges (both Leveson LJ in his Inquiry into the Culture, Practices and Ethics of the Press and as expressed in numerous decisions of the High Court and Court of Appeal (§§90-99)) “that as a matter of public policy the identity of those arrested or suspected of a crime should not be revealed to the public has now resulted in a uniform general practice by state investigatory bodies not to identify those under investigation prior to charge”.

At §§108-142 the Court rejected the various arguments put for Bloomberg (these included the claim that the courts below had significantly overstated the likelihood of publication of the information causing damage to the claimant’s reputation and underestimated the public’s ability to observe the legal presumption of innocence; that information about an individual being subject to criminal investigation was private not because it was potentially reputationally damaging but rather than because of the nature of the information itself; and that the courts below had failed properly to consider “all the circumstances of the case” at stage 1). Having rejected these arguments on the stage 1 test the Court concluded at §144 that:

“A determination as to whether there is a reasonable expectation of privacy in the relevant information is a fact-specific enquiry which requires the evaluation of all circumstances in the individual case. Generally, in setting out various factors applicable to that evaluation, including but not limited to the Murray factors, it is important to recognise that not all of them will be relevant to every conceivable situation and that the examination of the factors must be open textured without being given any pre-ordained weight. However, in respect of certain categories of information, such as the information in this case, a consideration of all the circumstances and the weight which must be attached to a particular circumstance will generally result in a determination that there is a reasonable expectation of privacy in relation to information within that category. In respect of those categories of information it is appropriate to state that there is a legitimate starting point that there is an expectation of privacy in relation to that information. We prefer the terminology of ‘a legitimate starting point’ to emphasise the fact specific nature of the enquiry and to avoid any suggestion of a legal presumption, as noted above in para 67. We consider that the courts below were correct in articulating such a legitimate starting point to the information in this case. This means that once the claimant has set out and established the circumstances, the court should commence its analysis by applying the starting point”.

The Court went on to state at §147 that the “short answer” to the second issue was that “neither the judge nor the Court of Appeal held that the fact that the information originated from a confidential document rendered the information private or meant that Bloomberg could not rely on the public interest in its disclosure.” The judge had “treated the confidentiality of the information as being a relevant and important factor at both stage one and stage two but he did not treat it as being determinative” (§148). He had recognised the distinction between confidential and private information and had rightly “place[d] reliance on the public interest in the observance of duties of confidence when carrying out the balancing exercise” at stage 2 (§152, citing Steyn J in Greystoke v Financial Conduct Authority [2020] EWHC 1011 (QB) §28). The Court of Appeal was “clearly correct in concluding that there was no error of law in the judge’s approach” (§155).

The Court having dismissed the first and second issues raised by Bloomberg it was inevitable that the appeal also failed on issue 3 it was dependent on Bloomberg winning on issues 1 and/or 2. The appeal was accordingly dismissed.

It is clearly the case that this decision endorses and continues the pendulum swing referred to in a previous Panopticon post by Anya Proops QC on the Duchess of Sussex v Associated News Ltd case “increasingly in favour of the protection of privacy rights at the expense of media freedoms”. There is room for concern about the impact of this trend, though the suggestion (made by Bloomberg’s CEO as well as by Damian Green MP) that privacy rights serve only the wealthy appears predicated on the assumption that the press will only comply with the applicable legal principles if individuals upon whom they wish to report are in a position to take legal action. The Panopticon post by Anya Proops QC mentioned above referred to the obligation placed on the press to engage in “most scrupulous focus on the particular information in issue, and the free speech justifications for publishing that information in particular, having regard to the particular contextual considerations relating to that information”. This obligation may be an onerous one but it was a striking feature of this case that Bloomberg does not appear to have engaged in any such consideration.

Perhaps the most significant threat posed by the judgment is its potential to provide further ammunition to a government intent on doing away with the Human Rights Act 1998 in its current form. According to an article in the Times, “A senior government source voiced anxiety about ‘creeping judgments’, saying: “There’s a lot of concern about protections offered to bad guys who want to be shielded from public scrutiny” while “The Ministry of Justice has not commented but pointed out that it was addressing concerns over curbs on press freedom through its reform of the Human Rights Act”.

Aileen McColgan QC @McColganAileen

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