CAN we trust the average person to assume that an individual who is identified as being the subject of a criminal investigation is innocent until proven guilty? According to the unanimous Supreme Court judgment in Bloomberg LP v ZXC [2022] UKSC 5, we cannot. And, since the ordinary person does not apply the presumption of innocence in their day-to-day lives, do those who are the subject of a criminal investigation but who have not been charged have a reasonable expectation of privacy in respect of information relating to their being investigated? That was the question at the centre of the appeal before the Supreme Court in ZXC. The issue is one which the lower courts have grappled with for several years and has resulted in the development by those lower courts of a “starting point” in misuse of private information claims of a reasonable expectation of privacy in respect of information relating to pre-charge investigations. In ZXC, the Supreme Court endorsed the lower courts’ reasoning, confirming that there is, indeed, such a starting point or “general principle”. While the judgment is likely to be met with consternation from those who consider that Strasbourg and the domestic courts have enabled privacy interests to ride roughshod over freedom of expression (see for instance, Ministry of Justice, “Human Rights Act Reform: A Modern Bill of Rights”, CP 588, December 2021, at [204]–[217]), a closer reading ought to assuage concerns that the Supreme Court has sacrificed press freedom at the altar of Article 8 of the European Convention on Human Rights (“ECHR”).

The judgment centres on an article published by Bloomberg regarding an investigation by a UK law enforcement body (“UKLEB”) into the activities of X Ltd. ZXC was the chief executive of one of X Ltd.'s regional divisions, located in a foreign state. The article was based almost entirely on information from a leaked Letter of Request (“LoR”) that had been sent from the UKLEB to authorities in the foreign state seeking banking and business records of X Ltd. and ZXC, amongst others. The LoR, which was clearly marked “Confidential”, included references to ZXC and other suspects, described the nature of the investigation including that it concerned possible offences under the Proceeds of Crimes Act 2002 and the Fraud Act 2006, and set out a detailed assessment of the evidence that the UKLEB had collected and the UKLEB's conclusions based on that evidence (at [16]). Following publication of the article, ZXC brought proceedings for misuse of private information against Bloomberg. He alleged that he had a reasonable expectation of privacy in respect of the details of the UKLEB investigation, its assessment of the evidence, its conclusions based on that evidence – including its belief that ZXC had committed criminal offences – and its explanation of how the evidence it sought would assist the investigation (at [5]).

Liability for misuse of private information is determined by reference to the “now well-established” two-stage test (at [47]). The first stage asks whether, objectively, the claimant had a reasonable expectation of privacy in respect of the information. If so, the second stage asks whether that reasonable expectation is outweighed by the publisher's right to freedom of expression. The second stage involves a balancing of the claimant's privacy rights as protected by Article 8 of the ECHR and the publisher's Article 10 right to freedom of expression (at [26]). Both the trial judge and the Court of Appeal accepted that there is a “legitimate starting point” that “those who have simply come under suspicion [of law enforcement authorities] … have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact”, though that expectation is not “invariable” (at [35]). In deciding that ZXC did, in fact, have a reasonable expectation of privacy in respect of the investigation by the UKLEB, the trial judge placed significant weight on the manner in which the journalist had acquired the LoR and the fact that there was a public interest in retaining the confidentiality of the LoR. The Court of Appeal rejected the publisher's claim that, in doing so, the trial judge had conflated the equitable cause of action of breach of confidence with the tort of misuse of private information (at [40]). While the trial judge noted that there was “high public interest” in the issue of potential corruption by X Ltd. and its employees, the article by Bloomberg merely repeated parts of the confidential LoR without offering any of its own comment on or criticism of the investigation (at [29]). Weighing all of the relevant factors as part of the Stage 2 balancing exercise, the trial judge concluded that ZXC's privacy interests prevailed, and the Court of Appeal found no reason to disturb that finding.

On appeal before the Supreme Court, Bloomberg unsuccessfully argued, inter alia, that the Court of Appeal was wrong to hold that there is a “general rule” that a person under criminal investigation has, in the pre-charge phase, a reasonable expectation of privacy in respect of information relating to that investigation. Given that the Government is concerned that “privacy law is being used against free speech within the law”, the Supreme Court's endorsement of a “general rule” that individuals have a reasonable and objective expectation of privacy in respect of information relating to pre-charge criminal investigations is likely to draw the ire of those who agree that “privacy cases” are being utilised strategically by “individuals or corporations to evade scrutiny in the public interest” (Ministry of Justice, “Strategic Lawsuits Against Public Participation: A Call for Evidence”, 17 March 2022, pp. 3, 5). Critics would do well, however, to examine closely the Supreme Court's reasoning before concluding that ZXC is yet another example of the tyranny of privacy over freedom of expression.

The Supreme Court was at pains to emphasise that a “general rule” or “legitimate starting point” that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information pertaining to that investigation, is neither a legal rule nor an irrebuttable presumption (at [67]). Reference to the general rule simply means that once the claimant has established that the relevant information was that a person, prior to being charged, was under criminal investigation, the “correct approach is for a court to start with the proposition that there will be a reasonable expectation of privacy in respect of that information” (at [70]). However, the claimant must still prove that there was, in fact, an objectively reasonable expectation of privacy (at [69]). There is some conduct in respect of which no reasonable expectation arises; as the Supreme Court observed, “public rioting is not the kind of activity which article 8 exists to protect” (at [68]). This approach ensures that greater weight is not automatically attributed to Article 8 which would run counter to the well-established principle that, in cases involving misuse of private information, neither Article 8 nor Article 10 has precedence, and the requirement that courts “bring a close focus on the comparative importance of the rights being claimed in the particular case” (PJS v News Group Newspapers Ltd. [2016] A.C. 1081, at [20]).

In challenging the validity of a “general rule” or “starting point”, Bloomberg argued that the presumption of innocence ameliorates the adverse effect of publication of the information (at [102]). In rejecting this contention, the Supreme Court noted the “growing recognition that as a matter of public policy the identity of those arrested or suspected of crime should not be revealed to the public” which has “resulted in a uniform practice by state investigatory bodies not to identify those under investigation prior to charge” (at [81]). Further, there is a “uniformity of judicial approach” which is “based on judicial knowledge that publication of information that a person is under criminal investigation will cause damage to reputation together with other damage, irrespective of the presumption of innocence” (at [81]). Indeed, while expressions such as “there being no smoke without fire” or “mud sticks” have a tendency to “obscure rather than elucidate the essential point” – that “reputational and other harm will ordinarily be caused to the individual by publication of” information about pre-charge criminal investigations – the premise of such expressions holds true: “experience shows that [the damage caused] can be profound and irremediable” (at [109]). Indeed, one need only consider the facts in Sicri v Associated Newspapers Ltd. [2020] EWHC 3541 (Q.B.), [2021] 4 W.L.R. 9 to see just how catastrophic such “reporting” can be. The Supreme Court also rejected the argument that defamation's yardstick – the hypothetical reader, who is neither unduly suspicious nor naïve – should be “read across” into the tort of misuse of private information (at [112]). Relatedly, the Supreme Court expressed its “reservations” about the lower courts’ reliance on the approach adopted in cases of defamation when quantifying damages for the tort of misuse of private information (at [79]). While the court did not finally resolve this issue – it not being argued by the parties – lower courts would do well to heed the warning.

While the judgment in ZXC could be described as a “win” for privacy interests, a “general principle” or “starting point” of a reasonable expectation of privacy in respect of information relating to pre-charge criminal investigations does not preclude journalists from conducting their own inquiries into a person's alleged misconduct and reporting the outcome of those inquiries. As the trial judge, Court of Appeal and Supreme Court emphasised, the article at the centre of the proceedings in ZXC merely repeated the content of the LoR. If, instead, the article concerned ZXC's alleged wrongdoing based on Bloomberg's own investigations, this would have been a “distinct and separate situation” (at [78]). Given that law enforcement authorities have themselves adopted a uniform policy of not disclosing information regarding pre-charge investigations, the approach espoused by the lower courts and endorsed by the Supreme Court in ZXC is an eminently reasonable compromise between the conflicting Article 8 and 10 interests in such cases. Any contention that the decision unjustifiably curtails expression that is in the public interest ignores the very clear message from the Supreme Court that each case turns on its own facts and independent investigations by journalists may well fall outside the remit of the general rule.