Suspects and the right to privacy

A person under criminal investigation has a reasonable expectation of privacy until charged, the Supreme Court decided this week.

That had been established by Sir Cliff Richard in 2018, when the High Court held that BBC news coverage of a police raid on the entertainer’s home – which found no evidence and led to no charges – had breached his privacy rights. But a High Court ruling is merely persuasive. The news organisation we now have to thank for turning this principle into a precedent is the specialist business service Bloomberg.

In upholding earlier decisions by Mr Justice Nicklin and the Court of Appeal, the UK’s highest court confirmed that journalists cannot name individuals who are being questioned by the police, or other state investigators, unless the media’s right to freedom of expression outweighs the suspect’s right to privacy.

The claimant was a businessman whose identity remains protected. ZXC, as he is known to the law reports, is a US citizen working in the UK. He was running the regional division of a publicly listed company that operates in different parts of the world. The integrity of some foreign transactions involving that company has been publicly questioned for years.

A criminal investigation into the company and associated individuals was launched in 2013 by a UK law-enforcement body whose identity has also been withheld by the courts. Given that it was investigating what may be serious offences of corruption, bribery and fraud, it is not very difficult to guess which body this is. The investigation is still continuing but nobody working for the company has been charged.

In 2016, the law-enforcement body sent a formal letter of request to a foreign government under a process known as mutual legal assistance. It referred to an investigation into whether the claimant ‘was part of a conspiracy to defraud’ the company. It asked, among other things, for details of the claimant’s business and banking records. In requesting confidentiality, the law-enforcement body said it feared that disclosure might ‘frustrate our investigation’.

A copy of the 15-page letter was leaked to a journalist working for Bloomberg. This formed the basis of an article published by the news organisation towards the end of 2016. The claimant tried unsuccessfully to get the article taken down.

'In a claim for misuse of private information, a court must first establish objectively whether the claimant has a reasonable expectation of privacy in respect of the relevant information'

Refusing to grant an injunction, Mr Justice Garnham said the article had ‘prompted no adverse reaction from the investigators’. They apparently had no fears that it was damaging their work. ‘Had this application been made or supported by the law-enforcement agency,’ the High Court judge added, ‘the outcome may have been very different.’

Indeed, it would. Unusually, the businessman pressed on with his claim and it was tried nearly two years later by Mr Justice Nicklin. He found there had been ‘a serious failure of candour’ in the evidence that Bloomberg put before the court at the injunction application and then ‘a prolonged failure to inform the court (or the claimant) subsequently that material statements of fact, on which the court had relied at the interim injunction stage, were not correct’.

What Garnham had not been told was that there were ‘clear protests’ by the law-enforcement body both before and after publication. There had been a ‘worrying disconnect’ between senior staff at Bloomberg and those conducting litigation on its behalf. Its own counsel had been left in the dark. Bloomberg’s solicitors should have acted as soon as they discovered that Garnham had been misled.

Nicklin concluded in April 2019 that an injunction would not be pointless because relatively few people had seen the article over the previous two years or more. He ordered it to be taken down and his judgment was upheld by the Court of Appeal in May 2020.

In a claim for misuse of private information, a court must first establish objectively whether the claimant has a reasonable expectation of privacy in respect of the relevant information. If so, the court must then decide whether that expectation is outweighed by the publisher’s right to freedom of expression.

Bloomberg challenged the proposition that a person under criminal investigation has a reasonable expectation of privacy. It argued that the public understood the presumption of innocence. The assumption that there was no smoke without fire would not be made in defamation law.

But this was not a defamation claim, the justices pointed out. Misuse of private information is a ‘separate, distinct and stand-alone tort’. The court was not asking what the notional ordinary reasonable reader would understand a publication to mean. The question was how the claimant would be perceived if the information was published. Some readers might think he was guilty.

Commenting on the ruling, Hanna Basha from the law firm Payne Hicks Beach said that claimants who wanted to protect their reputations were increasingly bringing privacy claims rather than suing in defamation.

We can now see why.

joshua@rozenberg.net