PRIVACY RIGHTS OF THOSE UNDER INVESTIGATION UPHELD BY THE COURT OF APPEAL

In an eagerly anticipated judgment, the Court of Appeal has robustly upheld the general principle that an individual under investigation has a reasonable expectation of privacy in that information: ZXC v Bloomberg L.P. [2020] EWCA Civ 611.

An international businessman (ZXC) brought a claim against Bloomberg after it published an article naming him as a potential suspect in an ongoing investigation into bribery allegations against his business.

Bloomberg had obtained a confidential 'Letter of Request' (LoR) sent by the investigating authority to a foreign government, requesting assistance in the investigation. The LoR 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 LoR, including information relating to ZXC.

Reasonable expectation of privacy

At first instance, the High Court concluded that, "in general, a person does have a reasonable expectation of privacy in a police investigation up to the point of charge" and that ZXC's case was no exception.

On appeal, the Court of Appeal remarked that being "suspected of a crime is damaging whatever the nature of the crime". Following a review of a number of number of High Court decisions, including Cliff Richard's case against the BBC, the Court of Appeal concluded:

"…those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty."

A suspect's reasonable expectation of privacy is not absolute and the Court of Appeal recognised that there may be certain situations that give rise to a significantly reduced (or even no) expectation of privacy (e.g. rioting or election fraud).

Privacy v. freedom of expression

When it came to balancing ZXC's right to privacy against Bloomberg's right to freedom of expression, the Judge at first instance was 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.

The Court of Appeal considered the analysis undertaken at first instance to have been "thorough and nuanced".

Accordingly, Bloomberg's appeal was dismissed.

Comment

There can be no doubt that this is an important privacy judgment from the Court of Appeal. It confirms, in no uncertain terms, that individuals subject to an investigation have a reasonable expectation of privacy unless and until charged with an offence.

It is important to remember, however, that this general presumption may still be displaced where there are strong countervailing public interest factors in play. Each case will therefore continue to turn on its own facts.

Author Daniel Bishop