Introduction

Bloomberg LP v ZXC ([2022] 2 WLR 424) is a landmark judgment delivered by the United Kingdom Supreme Court on February 16, 2022. The central issue in this case revolved around whether individuals under criminal investigation possess a reasonable expectation of privacy concerning information related to the investigation, even before formal charges are filed. This case juxtaposed the rights to privacy under Article 8 of the European Convention on Human Rights (ECHR) against the freedom of expression under Article 10 of the ECHR.

The appellant, Bloomberg LP, an international financial software, data, and media organization, published an article implicating the claimant, ZXC, in activities that were under investigation by a UK law enforcement body (UKLEB). ZXC, a citizen of the United States with indefinite leave to remain in the UK, filed a claim alleging misuse of private information, seeking damages and injunctive relief.

Summary of the Judgment

The High Court initially ruled in favor of ZXC, awarding damages and issuing an injunction against Bloomberg. Bloomberg appealed, but the Court of Appeal upheld the High Court’s decision. Bloomberg then sought permission to appeal to the Supreme Court, which was granted.

The Supreme Court dismissed Bloomberg’s appeal, affirming the lower courts’ findings that ZXC had a reasonable expectation of privacy concerning the information published. The Court emphasized that individuals under criminal investigation are protected by privacy rights, and the publication of such information must be carefully balanced against the public interest and freedom of expression.

Analysis

Precedents Cited

The judgment extensively cited precedents that shape the tort of misuse of private information. Key cases include:

• Campbell v MGN Ltd [2004]: Recognized misuse of private information as distinct from breach of confidence.
• Murray v Express Newspapers plc [2008]: Established a two-stage test for misuse of private information.
• Sicri v Associated Newspapers Ltd [2017]: Reinforced the privacy rights of individuals under investigation.
• Denisov v Ukraine [2018]: Highlighted that reputation falls within the scope of private life under Article 8.

These precedents collectively underscore the evolving legal landscape that increasingly recognizes individual privacy rights, especially in contexts involving criminal investigations.

Legal Reasoning

The Court applied the established two-stage test for misuse of private information:

• Stage One: Determine if the claimant has a reasonable expectation of privacy concerning the information.
• Stage Two: Balance the claimant’s Article 8 rights against the publisher’s Article 10 rights to assess which should prevail.

In Stage One, the Court confirmed that individuals under criminal investigation generally have a reasonable expectation of privacy regarding information related to the investigation. This was supported by the confidentiality norms surrounding Letters of Request used in mutual legal assistance and the potential reputational damage arising from their disclosure.

In Stage Two, the Court weighed the public interest in maintaining the confidentiality of ongoing investigations against Bloomberg’s freedom of expression. The Court concluded that the privacy rights of ZXC outweighed Bloomberg’s right to publish the sensitive information, especially given the risk of prejudicing the criminal investigation and causing reputational harm.

Impact

This judgment has significant implications for privacy law and media practices in the UK:

• Enhanced Privacy Protections: Reinforces the protection of individuals’ privacy during the investigative phase of criminal proceedings, even before charges are formally brought.
• Media Responsibilities: Imposes stricter obligations on media outlets to respect the confidentiality of law enforcement documents and consider the privacy rights of individuals under investigation.
• Legal Precedence: Provides a clear precedent that privacy rights under Article 8 can prevail over freedom of expression under Article 10 in cases involving sensitive investigatory information.

Future cases involving the publication of information related to ongoing investigations will likely reference this judgment to balance privacy rights and freedom of expression appropriately.

Complex Concepts Simplified

Misuse of Private Information

This legal concept refers to the unauthorized use or disclosure of private information about an individual. Unlike defamation, which deals with false statements harming reputation, misuse of private information protects factual private details regardless of their truthfulness.

Two-Stage Test

A legal framework used to assess cases of misuse of private information:

• Stage One: Establish whether the information is private by determining if there is a reasonable expectation of privacy.
• Stage Two: If Stage One is affirmative, then balance the individual's privacy rights against the publisher’s freedom of expression to decide which right should prevail.

Letters of Request (LoR)

Confidential documents issued by one state to another requesting legal assistance in criminal matters. These documents are protected under confidentiality norms to prevent prejudice to ongoing investigations.

Conclusion

The Supreme Court’s judgment in Bloomberg LP v ZXC solidifies the protection of privacy rights for individuals undergoing criminal investigations prior to being charged. By affirming that such individuals have a reasonable expectation of privacy, the Court has set a robust precedent that balances the delicate interplay between personal privacy and freedom of the press. This decision underscores the importance of safeguarding investigatory confidentiality to prevent reputational harm and ensure the integrity of criminal proceedings.

For media organizations, this judgment serves as a crucial reminder to exercise heightened diligence when handling sensitive information that may pertain to ongoing investigations. Legally, it reinforces the reliability of the two-stage test in misuse of private information cases, providing clarity and guidance for future litigation in this domain.

Overall, Bloomberg LP v ZXC marks a significant advancement in privacy law, ensuring that the rights of individuals are adequately protected against unwarranted public exposure during vulnerable phases of criminal investigations.