A suspect’s right to privacy during criminal investigations – ZXC v Bloomberg LP [2020]

Posted on 29th May 2020

In April 2019, the High Court ruled that a suspect in an ongoing criminal investigation has a reasonable expectation of privacy regarding information relating to that investigation up until they are charged with an offence. The appeal of this decision was dismissed in ZXC v Bloomberg LP [2020] EWCA Civ 611 on May 15th 2020 when the Court of Appeal agreed with the High Court’s ruling.

Background

This case involved ZXC, a businessman who was under criminal investigation for his alleged role in allegations of corruption, bribery, fraud, and conspiracy offences. In 2016, the Bloomberg website published an online article identifying ZXC as being one of the individuals subject to this ongoing investigation. The article also contained details taken from a highly confidential letter which gave rise to ZXC’s claim that Bloomberg had misused his private information and breached his privacy rights. Bloomberg refused to remove the article from its website at ZXC’s request therefore ZXC applied for an injunction against the publication of the article. When the requested injunction was not granted, the matter went to trial in 2018.

The judge at first instance found favour of ZXC, finding that Bloomberg’s identification of ZXC as a suspect in an ongoing criminal investigation before he was charged did amount to the misuse of his private information. ZXC was granted an injunction against Bloomberg’s publication and was also awarded £25,000 in damages.

The Article

When this case reached the Court of Appeal this year, the court considered the following questions in relation to ZXC’s Article 8 rights and Bloomberg’s Article 10 ECHR rights:

  1. Did ZXC have a reasonable expectation of privacy under Article 8 (right to respect for private and family life) with regard to the published information?
  2. If so, did Bloomberg’s right under Article 10 (right to freedom of expression) outweigh ZXC’s Article 8 right?

The Judgment

​In relation to the first question, the judgment drew a distinction between the reporting of ZXC’s alleged criminal conduct and the reporting of ZXC being under investigation for his alleged criminal conduct. Reporting that a criminal investigation is ongoing against an individual may be seen to validate mere allegations by suggesting that these allegations are serious enough to warrant a criminal investigation. Furthermore, a separate concern was Bloomberg’s decision to publish details taken from a letter that was not in the public domain and that had been clearly and expressly marked in bold lettering as “confidential”. ZXC therefore did have a reasonable expectation of privacy surrounding the reporting of him being under an ongoing criminal investigation.

The second question involved the balancing of the two competing rights. Bloomberg had to show that there was sufficient public interest in publishing information derived from the confidential letter. Any public interest reasons raised, must then outweigh ZXC’s reasonable expectation of privacy. The Court of Appeal decided that there were no sufficient public interest reasons to justify Bloomberg’s identification of ZXC nor to publish details from the confidential letter. The judgment considered that information published in the article may interfere with the ongoing investigation which was at that point still in its early stages. Furthermore, Bloomberg was bound to observe the confidential nature of the letter’s contents as it was unable to show how it obtained access to the letter.

The judgment emphasises the importance of suspects being granted a reasonable expectation of privacy because there is a natural “human characteristic to assume the worst (that there is no smoke without fire)” and that the “fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty” cannot be overlooked. It also recognised that to be accused of any crime will in itself be damaging to the suspect and therefore the reasonable expectation of privacy will generally apply to all types of crimes, not just to the ones deemed the most serious. In addition, all suspects are entitled to this expectation, not just those with some degree of public status, for example, a politician or a celebrity.

This important ruling provides clarity on the privacy rights of suspects who find themselves subject to a criminal investigation which may be ongoing for months or even years before charges, if any, are brought.

Since this judgment, Bloomberg has applied for permission to appeal to the Supreme Court and this decision is currently pending.

 

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