ZXC v Bloomberg LP

Factual and Procedural Background

The Plaintiff, a businessman, was referred to in an article published by Company A, an online news organisation, on its website. The article indicated that the Plaintiff was under investigation by a law enforcement agency in connection with allegations of fraud, bribery, and corruption related to a company. The Plaintiff sought a court order for the removal of the information relating to him from the website.

Initially, a vacation Judge declined to grant injunctive relief but held a private hearing, ruling that the hearing should be in private and permitting the Plaintiff to proceed under a pseudonym. The hearing of the application was adjourned and later continued in private before the presiding Judge, who also ruled that privacy was strictly necessary in the interests of justice.

The investigation by the law enforcement agency began in 2013 and had been the subject of media coverage. The Plaintiff did not attempt to prevent the publication of an earlier article related to the investigation. In late 2016, Company A published the article at issue, prompting the Plaintiff’s solicitor to raise concerns about breaches of privacy, confidence, and the Data Protection Act 1998. Company A declined to remove the article, leading to these proceedings.

Legal Issues Presented

1. Whether the Plaintiff has a reasonable expectation of privacy in the information published about him, constituting misuse of private information.
2. Whether the Defendant’s right to freedom of expression under Article 10 of the European Convention on Human Rights outweighs the Plaintiff’s Article 8 rights to privacy.
3. Whether the Plaintiff’s claim under the Data Protection Act 1998, specifically the application of the journalistic exemption under section 32, is likely to succeed.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff argued for an interim injunction requiring the removal of the article or parts referring to him, based on misuse of private information.
• He claimed a reasonable expectation of privacy regarding the law enforcement agency’s investigation and the confidentiality of related documents.
• The Plaintiff contended there was no public interest in publishing highly confidential, leaked information about an ongoing criminal investigation.
• He relied on precedent to argue that prior publication does not preclude an injunction to prevent further intrusion into private life.
• Under the Data Protection Act, the Plaintiff asserted that the Defendants had no consent to process his data and that the journalistic exemption did not apply because publication was not in the public interest.

Appellee's Arguments

• The Defendant argued that removal of the article would infringe their right to freedom of expression under the Human Rights Act 1998.
• They contended the Plaintiff had no realistic prospect of success at trial on the misuse of private information claim.
• The Defendant asserted there was no reasonable expectation of privacy in the published information identifying the Plaintiff.
• They argued that any harm to the Plaintiff was negligible and that the article had already been widely disseminated.
• The Defendant maintained a strong public interest in continued publication, asserting that the Plaintiff’s Article 8 rights did not outweigh their Article 10 rights.
• Regarding the Data Protection Act claim, the Defendant relied on the journalistic exemption under section 32, asserting a reasonable belief that publication was in the public interest.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied the two-stage test for misuse of private information: first, whether the Plaintiff had a reasonable expectation of privacy, and second, balancing that right against the Defendant’s right to freedom of expression.

Considering the facts, the court found that the Plaintiff, as a businessman and not a public figure, had a reasonable expectation that the confidential law enforcement document would remain private. The information was leaked without consent, the investigation was ongoing and not publicly disclosed by the agency, and the Plaintiff had not been arrested or publicly questioned.

The court acknowledged the distress and anxiety suffered by the Plaintiff and his family due to the publication, but noted mitigating factors: no attempt was made to restrain an earlier article; information about the investigation was already publicly available; the article had been widely read and reproduced before objection was raised; and the Plaintiff provided no personal witness statement detailing harm beyond that stated by his solicitor.

On the other hand, the court assigned substantial weight to the Defendant’s Article 10 rights. The article was serious journalism on a matter of public interest involving allegations of corporate crime. The law enforcement agency had not objected to the publication. Naming the Plaintiff was a legitimate editorial decision relevant to the credibility of the article.

While the court recognized the public interest in preserving confidentiality of law enforcement documents and noted the absence of whistleblowing journalism, it concluded that the Defendant’s freedom of expression outweighed the Plaintiff’s privacy rights.

Regarding the Data Protection Act claim, the court considered the Defendant’s reliance on the journalistic exemption under section 32, which requires a reasonable belief that publication is in the public interest. The Defendant demonstrated this belief, supported by the author’s witness statement, and the court found no realistic prospect of the Plaintiff overcoming this defence.

Accordingly, the court rejected the Plaintiff’s application for an interim injunction to remove the article.

Holding and Implications

The court REFUSED THE APPLICATION for an interim injunction requiring the removal of the article or parts thereof referring to the Plaintiff.

The direct effect is that the article may remain published on the Defendant’s website. The decision does not establish new precedent but reinforces the application of existing principles balancing privacy rights against freedom of expression, particularly in the context of journalistic reporting on ongoing law enforcement investigations. The Plaintiff has indicated an intention to appeal the order, and the judgment has been produced in both public and private forms to accommodate that process.