ZXC v Bloomberg – privacy and the criminal process

Out-Law Analysis | 02 Dec 2021 | 1:34 pm | 8 min. read

At what point should information in criminal investigations become public? That is a question at the heart of a case heard by the UK Supreme Court this week.

The case of ZXC v Bloomberg will decide the issue of whether, and to what extent, a person who has not been charged with an offence can have a reasonable expectation of privacy in relation to information that relates to a criminal investigation into their activities.

Barker David

David Barker

Partner

The Supreme Court now has the opportunity to re-examine when a reasonable expectation of privacy arises in criminal investigations and strike the right balance between protecting an individual’s right to privacy and preserving free expression

The criminal process and ZXC v Bloomberg

The broad stages of the criminal process under English law are: investigation, arrest – at least in some instances, charge, prosecution, trial, conviction and rehabilitation. A critical question in this context is whether information relating to a criminal investigation prior to the point of charge is private? The obvious basis for such a proposition is that if the suspect is never charged then publicity around the investigation may have an unwarranted effect on them.

The courts have grappled with this question in a number of cases, but the Court of Appeal’s decision in ZXC v Bloomberg has drawn a distinct line. The Court of Appeal confirmed that an individual who is being investigated by a law enforcement body has a reasonable expectation of privacy in the facts and details of that investigation up until the point of charge.

This is notable because identification of suspects prior to charge is not currently regulated by statute. Media publishers are, however, at risk of a strict liability publishing contempt under the Contempt of Court Act 1981 if they publish information about a suspect that may be prejudicial to proceedings once those proceedings become active – i.e. from the point of arrest.

The claimant in ZXC v Bloomberg is a US citizen and businessman who was being investigated by a UK law enforcement body. Bloomberg published an article about him and the investigation. Details in the article were drawn from a letter of request for mutual legal assistance that had been sent by the law enforcement body to another authority abroad. It is unclear how Bloomberg obtained the letter, however it was marked as confidential and it was clear from it that the investigation was at an early stage and that the man had not been arrested. 

In its judgment, the Court of Appeal noted that there was an important distinction to be made between a report about alleged criminal conduct of an individual on the one hand and a report about a police investigation into that individual and preliminary conclusions drawn from those investigations on the other.  

As it currently stands, the Court of Appeal’s ruling in ZXC v Bloomberg confirms that there is a reasonable expectation of privacy in respect of the latter but not the former. 

Misuse of private information

In England and Wales, claims of misuse of private information must satisfy a two-stage test.

First, an individual bringing such a claim must demonstrate that they have a reasonable expectation of privacy in the information made, or intended to be made, public.

If that requirement is satisfied, the individual must then show that their privacy rights outweigh freedom of expression rights when these two competing qualified rights, provided for under the European Convention on Human Rights and enshrined in the UK’s Human Rights Act, are balanced in what the courts have termed the ‘ultimate balancing act’. 

In ZXC v Bloomberg, the Court of Appeal upheld the High Court’s judgment, which found in the claimant’s favour in his claim for misuse of private information. As such, the pendulum has swung in favour of protecting the privacy rights of those suspected of criminal activity. In addition, the court confirmed that this reasonable expectation of privacy is not lessened by the nature of the crime being investigated or the public characteristics of the suspect. It remains the same irrespective of these factors, although it can be reduced if the activity that is the subject of investigation is of a public nature.

This point was summarised by Lord Justice Simon in his leading judgment for the Court of Appeal: “To be suspected of a crime is damaging whatever the nature of the crime: it is sensitive personal information and there can be little justification for a hierarchy of offences giving rise to suspicion…I would accept that there may be some cases where the reasonable expectation of privacy may be significantly reduced, perhaps even to extinction, due to the public nature of the activity under consideration.” 

The comments made by Lord Justice Simon pose the question: in which circumstances is the activity of such a public nature that it may outweigh the individual’s right to privacy?

Public v private – case law 

Sicri v Associated Newspapers

The right balance to strike was considered by the High Court in the case of Sicri v Associated Newspapers.

Alaedeen Sicri was arrested in connection with the Manchester Arena terrorist attack at an Ariana Grande concert. This fact and his name were reported by MailOnline. Mr Sicri was subsequently released without charge and it was accepted that he had had no involvement with the attack. Mr Sicri brought a claim for misuse of private information, claiming that the publication of the story had negatively affected his career as a commercial pilot and that he subsequently suffered depression. Mr Justice Warby followed the Court of Appeal’s decision in ZXC v Bloomberg and held that individuals have a reasonable expectation of privacy when being investigated and not yet charged. Identifying Mr Sicri was held to make no contribution to any public debate and Mr Sicri was subsequently successful in his damages claim for misuse of private information. 

This judgment provides more protection for the rights of criminal suspects whose lives may be severely damaged by media reporting of early-stage police enquiries. It confirms that a publisher should not publish a criminal suspect’s name prior to charge unless there is a sufficient public interest justification for doing so.

The bar in that respect is high: although the Sicri case concerned terrorist activity of a very public nature, the court nevertheless found that this still did not outweigh the individual’s right to privacy during the investigation.

This is notwithstanding the fact that Mr Sicri’s identity as a suspect had already been published in an article by The Guardian newspaper prior to the MailOnline publishing their story. This was found to have had no impact on his reasonable expectation of privacy because Mr Justice Warby reasoned that “…a person’s privacy rights are not defeated by the mere fact that information is accessible”.

This, in itself, raises an interesting question around the extent to which a publisher can rely upon the existing public availability of information about an arrest to defend their own publication of it. The fact that someone has been arrested may, for example, be posted on social media by members of the public. If pictures and videos of that arrest are made available online, this may be a circumstance where the activity is so public that any reasonable expectation of privacy in that information is extinguished.

Sir Cliff Richard v BBC

The case of Sir Cliff Richard v BBC concerned the reporting of police investigations into historic sexual abuse allegations. The BBC reported details including that Sir Cliff was the subject of investigation. The broadcaster also aired aerial footage of police officers searching Sir Cliff’s Berkshire flat. He was questioned by police but never arrested or charged and was later told by police that he was no longer under investigation. The High Court held that there was a reasonable expectation of privacy in relation to an ongoing police investigation into sexual abuse and awarded damages to Sir Cliff. He was also awarded compensation for reputational harm as a result of the publication of police investigations.

JR38 judicial review

This case concerned a 14-year-old who was involved in rioting in Derry in Northern Ireland in 2010. To identify those involved and to act as a deterrent against future activity of this nature, the police published CCTV footage depicting the boy, JR38, in two newspapers.

JR38 sought to bring a claim against the police for publishing his photograph on the basis that it was a breach of his right to privacy under Article 8 of the European Convention on Human Rights. The Supreme Court, in a split three-two judgment, found that JR38’s Article 8 rights were not engaged. It found that there was not an objective reasonable expectation of privacy on the facts of the case, not least because the riot had occurred in public. It further considered that, even if there was a reasonable expectation of privacy, upon balancing the rights, the interference with JR38’s Article 8 right would have been justified as the police’s purpose was to deter and prevent crime.

Khuja v Times Newspapers Ltd and others

In this Supreme Court case, Mr Khuja had been arrested and then released without charge following an investigation into sexual offence allegations. He was named during the trial of others who were arrested during the same investigation and sought an injunction preventing newspapers from publishing this information. This was denied by the Supreme Court on the basis that the general public would understand the difference between suspicion and guilt and the order would have prevented the free reporting of a public trial.

Barker David

David Barker

Partner

Although Article 8 has been found to confer rights to protect against harm to reputation … this does not mean that misuse of private information claims should be used as a vehicle for claiming damages for harm to reputation

Review of the case law 

The case law to date would suggest that the courts are concerned with protecting the privacy of an individual who is the subject of criminal investigation up until the point of charge, unless, as in the case of JR38, the nature of the activity is committed so publicly that it becomes unrealistic to argue that it attracts a right to privacy.

An individual’s right to privacy and family life is enshrined in Article 8 of the European Convention of Human Rights, and it is from here that privacy rights have developed. Although Article 8 has been found to confer rights to protect against harm to reputation, as in Sir Cliff’s case, this does not mean that misuse of private information claims should be used as a vehicle for claiming damages for harm to reputation. This is because claims for misuse of private information are not subject to the same in-built statutory hurdles that arise with claims of defamation, which would be the traditional claim brought to protect an individual’s reputation. Defamation claimants must, for example, satisfy a ‘serious harm’ threshold and there are strong protections for defendants who claim their publication of information was in the public interest.

If case law continues to develop in this way, we could see misuse of private information claims being brought to obtain injunctions against publication of allegedly libellous articles. This is troubling, as claimants are prevented from obtaining libel injunctions in “all but the most exceptional circumstances”. Misuse of private information claims are not subject to the same barriers, and their use in this manner could therefore ultimately be harmful to freedom of expression.

One concerning consequence of these cases is an overall ‘chilling effect’ on press freedom because of the courts’ increasing tendency to lean in favour of the individual’s rights. The press has a vital role to play in ensuring the public remains informed about serious crime and accurate reporting of police investigations is necessary in a democratic society.

The Supreme Court now has the opportunity to re-examine when a reasonable expectation of privacy arises in criminal investigations and strike the right balance between protecting an individual’s right to privacy and preserving free expression. The Supreme Court has found this balance in the past, as in the Khuja case, where it was recognised that granting an injunction would have prevented accurate court reporting and this would have been a bar to free expression. Whether this balance will be achieved remains to be seen. 

Co-written by David Barker, Caroline Henzell and Lottie Peach of Pinsent Masons.