Privacy in the Context of Criminal Investigations: Bloomberg LP vs. ZXC [2022] UKSC 5 – Privacy

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On February 16, 2022, the Supreme Court issued its unanimous judgment in Bloomberg LP vs. ZXC
[2022] UKSC 5. The Court held that, generally, a person who is the subject of a criminal investigation has, before being charged, a reasonable expectation of privacy in relation to information relating to that investigation .

The applicant, ZXC, is a US citizen who has indefinite leave to stay in the UK. He worked for a listed company and became the general manager of a regional division of this company. ZXC filed a misuse of private information (“MPI”) complaint after Bloomberg published an article relating to the activities of a company in ZXC’s division that had been the subject of a criminal investigation by a law enforcement agency. British law enforcement.

One of the issues the Supreme Court had to decide was whether the Court of Appeal erred in finding that there is a general rule that a person under criminal investigation has, before be charged, a reasonable expectation of privacy in the information relating to this investigation.

To answer this question, the Court considered the judgment of Sir Anthony Clarke MR in Murray v Express Newspapers plc [2008] EWCA Civ 446 which endorsed a two-step test to determine whether there had been a misuse of private information: in the first step, the question is whether the claimant had a reasonable expectation of confidentiality in the relevant information ; if so, at the second stage, the question is whether this expectation is outweighed by the opposing interest of the publisher’s right to freedom of expression.

AT [§36] of Murray it was noted that “whether there is a reasonable expectation of privacy is a broad question, taking into account all the circumstances of the case“. These circumstances are likely to include what has become known as “Murray factors”, which are:

(1) the qualities of the applicant;

(2) the nature of the activity in which the applicant is engaged;

(3) where it happened;

(4) the nature and purpose of the intrusion;

(5) the absence of consent and whether it was known or could be inferred;

(6) the effect on the plaintiff; and

7° the circumstances in which and the purposes for which the information came into the hands of the publisher.

AT [§72] the Court held:

We believe that the general rule or legitimate starting point outlined in the lower courts with respect to this category of information is similar to what might be called a general rule with respect to certain other categories of information. It has already been acknowledged that an examination of all the circumstances of the case, including but not limited to the so-called Murray factors, will generally lead, with respect to certain categories of information, to the conclusion that the applicant objectively has a reasonable expectation of confidentiality of information belonging to that category. The most striking example of such a category is information about an individual’s health condition which is widely considered to give rise to a reasonable expectation of privacy: see
McKennitt vs. Ash [2005] EWHC 3003 (QB) at para 142 by Eady J, and at the Court of Appeal at para 23 by Buxton LJ. There can of course be exceptions even with regard to information about an individual’s health condition, but in general details about an individual’s health are so obviously intimate and personal that a review of all the circumstances will lead to properly qualifying this information as private under the first stage test, unless there are strong countervailing circumstances
“.

Therefore, the first question to be answered was whether courts should start from a similar starting point, namely that there is a reasonable expectation of privacy in the information that a person is under criminal investigation.

The Court carefully analyzed existing case law and Bloomberg’s arguments, but rejected those arguments. AT
[§144] the Court held:

The determination of the existence of a reasonable expectation of privacy in the relevant information is a factual inquiry that requires the evaluation of all the circumstances of each case. Generally, in setting out various factors applicable to this assessment, including but not limited to the Murray factors, it is important to recognize that not all of them will be relevant in all conceivable situations and that the review factors must be opened without being given any pre-ordained weight. However, for certain categories of information, such as the information in the present case, an examination of all the circumstances and the weight to be attached to a particular circumstance will generally conclude that there is a reasonable expectation of privacy with respect to information in this category. With respect to these categories of information, it should be stated that there is a legitimate starting point that there is an expectation of privacy with respect to such information.. We prefer the terminology “a legitimate starting point” to emphasize the specific factual nature of the investigation and to avoid any suggestion of a legal presumption, as noted above at paragraph 67. We consider that the lower courts were correct. to articulate such a legitimate starting point. starting point of information in this case. This means that once the plaintiff has set out and established the circumstances, the court must begin its analysis by applying the starting point“.

The idea that the starting point for the Stage One exercise is that there is an expectation of privacy has caused some consternation in some media circles who fear that the Court’s ruling in ZXC deter the publication of articles concerning police investigations. However, the decision should be read fully and in context.

In the passage quoted above, Lord Hamblen and Lord Stephens (who delivered the unanimous judgment of the Court) pointed out that the phrase “legitimate starting point” was used so as not to suggest that they were establishing a legal presumption. While the starting point may therefore be that information relating to a criminal investigation is likely to be presumed private, courts are still required to assess all the circumstances of the particular case.

In addition, the Court established a presumptive starting point with respect to the first stage of the investigation. The Court at [§76] makes the following point:

“[T]his ground of appeal is limited to the first stage test. Even if the information is classified as private, it would still be subject to publication if it were balanced at the second stage by the contrary interest of the publisher’s right to freedom of expression according to Article 10 of the ECHR.”.

It is therefore clear that if an individual
may expect privacy to be respected in the context of a criminal investigation, this expectation may be overridden in appropriate circumstances in light of a publisher’s rights under Article 10.

More so, it was constant that “when someone is charged with a criminal offence, the principle of open justice generally means that the information is essentially public in nature, so that there can be no reasonable expectation of confidentiality about it“.

Whether ZXC will have any real consequences on the ability of the press to publish articles on criminal investigations remains to be seen. However, on a more prosaic level, police forces will have to bear in mind the issue of privacy in their daily activities and in the way they reveal, intentionally or inadvertently, the fact of an investigation to third parties.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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