ZXC v Bloomberg LP (2020)  EWCA Civ 611
Court of Appeal has held that those under criminal investigation had a reasonable expectation of privacy. It was not an absolute right but it was a…
In this case, the Court of Appeal has held that those under criminal investigation had a reasonable expectation of privacy. It was not an absolute right and could be qualified but it was the starting point. In this case the defendant media group had wrongfully published details from a letter of request for assistance from a UK law enforcement body to a foreign one.
A company referred to as X Ltd had fallen under suspicion and were investigated by a UK law enforcement body (UKLEB). The claimant was the Chief Executive of one of their regional divisions. The UKLEB wrote a confidential letter of request for assistance to a foreign law enforcement body. They sought banking and business records of X Ltd, named the claimant and other individuals and said that they were investigating acts of corruption, bribery and offences under the Proceeds of Crime Act 2002 and Fraud Act 2006. It outlined the suspicion that was held.
Bloomberg published the article on their website in June 2016. It was based almost entirely upon the letter of request. The claimant alleged that his right to privacy had been infringed. Two articles of the Human Rights Act came into play – Article 8, the right to respect for private life and Article 10, the freedom of expression enjoyed by the media. The judge at first instance ruled in favour of the claimant but Bloomberg appealed.
In the lead judgment Lord Justice Simon stated that the claimant had a reasonable expectation of privacy and this case was not an exception to that rule. The information in the letter of request was provisional and confidential. There was a difference between reporting into alleged criminality by a person and reporting of a police investigation. A reasonable person of ordinary sensibilities placed in the position of the claimant would have a reasonable expectation of privacy.
The court then considered the Article 10 point – whether the intrusion could be justified. The court ruled that there was plainly a strong public interest in maintaining the confidentiality of the letter of request and the information within it. There was a suspicion of corruption by a public state but the public interest in publishing such information did not confer authority to publish the contents of the letter of request where there was not a sufficient public interest for the publication.
For all these reasons the court concluded that the claimant had a reasonable expectation of privacy under Article 8 that was not outweighed by a public interest in freedom of expression under Article 10.
This is an interesting case which maintains the reasonable expectation of privacy established by Richard v BBC. It is interesting that the private and public interest coincided here. Both the claimant and the police had an interest in maintaining the privacy and confidentiality of the information. The court was unimpressed by the fact that Bloomberg seemed to completely ignore the clear confidentiality of the letter of request that came into their hands. The case follows the rule in Richard so police forces should exercise great caution before releasing the details of investigations to the media.