High Court Strongly Confirms Privacy Rights of Suspects in Investigations


If you find yourself the subject of a regulatory or police investigation, but have not been charged, are you entitled to expect this fact to be treated as private information, not to be reported by the media? This question has received ever greater attention in recent years, most notably in the wake of Sir Cliff Richard's successful damages claim against the BBC last summer.

Now, a recent High Court judgment indicates that the answer in most cases is likely to be 'yes'.

In ZXC v Bloomberg L.P. [2019] EWHC 970 (QB), an international businessman brought a claim against Bloomberg after it published an article naming him as a potential suspect in an ongoing investigation into alleged contraventions by his business of the Bribery Act 2010.

Bloomberg had obtained a confidential 'letter of request' sent by the investigating authority to a foreign government, requesting assistance in the investigation. The letter contained detailed and highly sensitive information about the investigation. Despite the authority's objections, Bloomberg proceeded to publish an article containing information drawn from the letter, including information relating to the claimant.

The claimant argued that Bloomberg's actions amounted to a misuse of his private information, and as such entitled him to an injunction against continued publication, and damages. In determining whether Bloomberg was liable, the judge had to consider:

(a) whether ZXC's right to privacy under Article 8 of the European Convention on Human Rights (ECHR) was engaged, i.e. whether he had a reasonable expectation of privacy in the relevant information; and

(b) if yes, was that outweighed by Bloomberg's right to freedom of expression under Article 10 of the ECHR?

Reflecting a clear trend in recent case law, the Court held that "in general, a person does have a reasonable expectation of privacy in a police investigation up to the point of charge".

The judge was confident that ZXC's case was no exception. The Court was particularly influenced by the nature of the letter and the circumstances in which Bloomberg had obtained it, and the fact that police guidelines now reflect a clear expectation that suspects should generally not be named.

When it came to balancing ZXC's right to privacy against Bloomberg's right to freedom of expression, the judge was also clear – there was no pressing need for the contents of the letter to be published; on the contrary, it was clearly in the public interest that they should not be published.

Bloomberg and its legal team came in for heavy criticism over the fact that during an earlier application for an interim injunction (to prevent publication pending the trial), they had allowed the court to be misled, letting the judge believe the journalist had only been shown the letter, when in fact Bloomberg was in possession of a copy.

The businessman was granted a permanent injunction and was awarded damages.

Privacy cases will always turn on their facts. The judge in this case clearly took a dim view of the way Bloomberg had treated an obviously confidential document, of its conduct before publication in its dealings both with the businessman and with the investigating authority, and of its journalist's lack of candour with the Court. Nevertheless, the judgment still represents the strongest affirmation yet that individuals subject to such investigations will in almost all cases have a right to privacy unless and until charged.

The judgment may be found here.

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David Engel

David Engel

Partner, Dispute Resolution
London, UK

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Abigail Healey

Abigail Healey

Consultant, Dispute Resolution
London

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