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Bloomberg LP v ZXC
Factual and Procedural Background
The Respondent, a United States citizen with permanent residence in the United Kingdom, was at the relevant time a senior executive of Company A, a publicly-listed multinational. Since 2013 the United Kingdom Law Enforcement Body (“the Law Enforcement Body”) has been investigating alleged fraud, bribery and corruption by Company A and certain individuals in the Foreign State. In autumn 2016 the Law Enforcement Body sent a confidential mutual legal assistance request (“Letter of Request”) to the Foreign State. The Letter of Request named the Respondent as a suspect and set out the investigators’ provisional views on his alleged wrongdoing.
A journalist employed by the Appellant obtained an unauthorised copy of the Letter of Request and, despite repeated objections from the Law Enforcement Body and the Respondent’s solicitor, published an article revealing: (i) that the Respondent had been interviewed under caution; (ii) the investigative steps sought from the Foreign State; and (iii) detailed allegations the Law Enforcement Body believed to be supported by preliminary evidence.
The Respondent sued the Appellant for misuse of private information, claiming both damages and injunctive relief. After a four-day trial Judge Nicklin found for the Respondent, awarded £25,000 and granted a prohibitory injunction ([2019] EWHC 970). The Court of Appeal dismissed the Appellant’s appeal ([2020] EWCA Civ 611). The Supreme Court (five Justices) granted permission and has now delivered the present judgment, published in open form with identifying details removed.
Legal Issues Presented
- Whether, as a general rule, a person under criminal investigation has a reasonable expectation of privacy in information about that investigation prior to charge.
- Whether, absent a pleaded claim for breach of confidence, the confidential origin of the information (the Letter of Request) rendered it private and/or diminished the Appellant’s public-interest defence.
- Whether the lower courts erred in concluding that (a) the Respondent in fact had a reasonable expectation of privacy and (b) the article 8/10 balancing exercise favoured the Respondent.
Arguments of the Parties
Appellant's Arguments
- The public can be trusted to respect the presumption of innocence; therefore publication of pre-charge investigative facts is not ordinarily reputationally damaging.
- Defamation authorities show that an “ordinary reasonable reader” distinguishes suspicion from guilt; the same standard should apply in privacy law.
- Privacy should protect only intrinsically private matters (e.g. health or intimate life). Business conduct within a publicly listed company is not such a sphere.
- The lower courts turned the multifactorial test into a rigid rule and over-emphasised confidentiality, wrongly conflating breach of confidence with privacy.
Respondent's Arguments
- Publication of investigative suspicions predictably harms reputation, personal dignity and family life, satisfying the threshold for article 8 engagement.
- There is a consistent line of domestic authority, professional guidance and public-policy material supporting pre-charge anonymity.
- The Appellant obtained the Letter of Request in flagrant breach of confidence; that factor legitimately weighs against publication when balancing articles 8 and 10.
- The judge applied the correct Murray factors; no basis exists for appellate intervention on factual evaluative findings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Campbell v MGN Ltd [2004] UKHL 22 | Established misuse of private information as a distinct tort; introduced two-stage (reasonable expectation & balancing) test. | Framework adopted for analysing both stages. |
| Douglas v Hello! (No 3) [2007] UKHL 21 | Confirmed the distinct foundations of privacy versus confidence. | Cited to emphasise doctrinal distinction. |
| Vidal-Hall v Google Inc [2015] EWCA Civ 311 | Recognised misuse of private information as a tort in domestic law. | Confirmed cause of action basis. |
| Murray v Express Newspapers plc [2008] EWCA Civ 446 | Set out seven “Murray factors” for stage-one analysis. | Both lower courts and Supreme Court employed factors. |
| National Crime Agency v Abacha [2016] EWCA Civ 760 | Letters of Request are inherently confidential. | Supported weight given to confidentiality. |
| McKennitt v Ash [2006] EWCA Civ 1714 | Applied two-stage privacy test; example of health information as presumptively private. | Analogy drawn to categories enjoying a “legitimate starting point”. |
| Sicri v Associated Newspapers Ltd [2020] EWHC 3541 | Pre-charge suspect generally has privacy rights. | Cited as consistent authority for starting point. |
| K v News Group Newspapers Ltd [2011] EWCA Civ 439 | Public-domain analysis: privacy can be lost by widespread disclosure. | Referred to degree of public knowledge point. |
| R (Wood) v Commissioner of Police [2009] EWCA Civ 414 | Article 8 requires a certain seriousness of interference. | Used on threshold seriousness. |
| Reynolds v Times Newspapers Ltd [2001] 2 AC 127 | Courts should be slow to stifle publication in public-interest journalism. | Balanced against confidentiality/public-interest factors. |
| Axel Springer AG v Germany (2012) 55 EHRR 6 | Criteria for balancing articles 8 and 10; importance of public-interest contribution. | Guided proportionality assessment. |
| Von Hannover v Germany [2004] EMLR 21 | “Contribution to a debate of general interest” is decisive in balancing. | Cited when assessing news value. |
| In re JR38 [2015] UKSC 42 | Approved use of Murray factors; noted privacy not invariable during public disorder. | Illustrated non-absolute nature of expectation. |
| Attorney General v MGN Ltd [2011] EWHC 2074 | Arrest publicity can cause severe reputational harm. | Example underpinning policy of anonymity. |
| Hannon v News Group [2014] EWHC 1580 | Refused strike-out; arrest information may be private. | Supports stage-one finding. |
| PNM v Times Newspapers Ltd [2014] EWCA Civ 1132 | Recognised growing policy against disclosing suspects’ identities. | Cited in policy survey. |
| Crook v Chief Constable of Essex [2015] EWHC 988 | Police press release naming suspect breached article 8. | Example of reputational harm. |
| ERY v Associated Newspapers Ltd [2016] EWHC 2760 | Interview-under-caution information private. | Supportive precedent. |
| Richard v BBC [2018] EWHC 1837 | Suspect has privacy in police investigation. | Quoted extensively on stigma point. |
| Khan v Bar Standards Board [2018] EWHC 2184 | Re-affirmed “starting point” of privacy pre-charge. | Bolstered general rule. |
| Mosley v Associated Newspapers Ltd [2020] EWHC 3545 | Explained coherence of law: identification usually only at charge. | Part of policy landscape. |
| R (Rai) v Crown Court at Winchester [2021] EWHC 339 | Court reiterated privacy up to charge, open justice thereafter. | Cited for boundary between stages. |
| Scott v Scott [1913] AC 417 | Open-justice principle at point of charge. | Justifies privacy disappearing post-charge. |
| Khuja v Times Newspapers Ltd [2017] UKSC 49 | Discussed public perception despite presumption of innocence. | Used to address Appellant’s reliance on presumption. |
| Lachaux v Independent Print Ltd [2019] UKSC 27 | Defamation rules distinct; misuse of private information has own criteria. | Rejected transposition of defamation “reasonable reader”. |
| Oberschlick v Austria (No 2) (1997) 25 EHRR 357 | Public figures face wider limits of acceptable criticism. | Considered under claimant’s attributes factor. |
| Fayed v United Kingdom (1994) 18 EHRR 393 | Businessmen in large public companies face scrutiny. | Balanced but not decisive against privacy. |
| Denisov v Ukraine (2018) ECHR 76639/11 | Reputation and professional life fall within “private life”. | Key authority linking reputation to article 8. |
| Niemietz v Germany (1992) 16 EHRR 97 | Article 8 embraces professional and social identity. | Supported harm analysis. |
| Pfeifer v Austria (2007) 48 EHRR 8 | Reputation forms part of private life. | Relied on for seriousness threshold. |
| S & Marper v UK (2008) 48 EHRR 50 | Privacy covers physical and psychological integrity. | Cited in Denisov passage. |
| Gillberg v Sweden (2012) 34 BHRC 247 | Personal suffering foreseeable from wrongdoing cannot found article 8 claim. | Discussed limits of protection. |
| Bărbulescu v Romania (2017) 44 BHRC 17 | Work-related activities can attract article 8 protection. | Supports inclusion of professional context. |
| Sidabras & Diautas v Lithuania (2004) 42 EHRR 6 | Foreseeability of consequences affects privacy analysis. | Cited via Denisov on misconduct exception. |
| Volkov v Ukraine (2013) 57 EHRR 1 | Professional life within private-life scope. | Mentioned within Denisov quotation. |
| Martínez v Spain (2014) 60 EHRR 3 | Professional zone may fall within private life. | Part of Denisov chain. |
| Bladet Tromsø & Stensaas v Norway (1999) 29 EHRR 125 | Press as public watchdog. | Quoted in Axel Springer passage. |
| Pedersen v Denmark (2004) 42 EHRR 24 | Public watchdog role of press. | Cited alongside Axel Springer. |
| Brevan Howard Asset Management LLP v Reuters Ltd [2017] EWCA Civ 950 | Public interest in enforcing duties of confidence. | Relied on at balancing stage. |
| AAA v Associated Newspapers Ltd [2013] EWCA Civ 554 | Balancing exercise attracts limited appellate review. | Supported deference to trial judge. |
| Greystoke v Financial Conduct Authority [2020] EWHC 1011 | Highlighted weight of public interest in confidence when balancing rights. | Cited approvingly in reasoning. |
| PJS v News Group Newspapers Ltd [2016] UKSC 26 | Article 8/10 balancing analogous to discretion; limited appellate interference. | Quotation adopted by Court of Appeal. |
Court's Reasoning and Analysis
1. Legitimate Starting Point. Drawing on domestic case-law, professional guidance, government policy and European jurisprudence, the Court held that publication of pre-charge investigative information ordinarily inflicts serious, sometimes irremediable damage on reputation and multiple aspects of private life. Consequently, it is a “legitimate starting point” that such information attracts a reasonable expectation of privacy.
2. No Irrebuttable Presumption. The starting point is fact-sensitive and may be displaced by counter-vailing circumstances (e.g. riot undertaken in public view). The Respondent nonetheless satisfied the test on the facts.
3. Rejection of Appellant’s Presumption-of-Innocence Argument. The Court found no empirical basis for assuming that public adherence to the presumption of innocence prevents reputational harm. Experience and judicial notice point the other way.
4. Defamation Concepts Inapplicable. The Court refused to import the “ordinary reasonable reader” construct from defamation; privacy law is a distinct cause of action concerned with autonomy and dignity, not solely falsity.
5. Confidential Origin Relevant but Not Determinative. Although no breach-of-confidence claim was pleaded, the illicit disclosure of the Letter of Request was a powerful contextual factor at both stages: it fortified the expectation of privacy and weighed against public-interest publication because it threatened the integrity of an ongoing criminal investigation.
6. Stage-One Application. Applying the Murray factors, Judge Nicklin (and the appellate courts) held that the Respondent’s attributes as a business executive did not nullify his privacy interest; the illicit source, potential reputational harm and absence of prior publicity were decisive.
7. Stage-Two Balancing. The Court accepted that corruption in the Foreign State is a matter of public interest, but emphasised that the Appellant had merely replicated confidential investigative material without independent journalistic inquiry. Upholding the confidentiality of the Letter of Request, protecting the fairness of the investigation and shielding the Respondent from disproportionate harm outweighed the Appellant’s article 10 rights.
8. Appellate Deference. Consistent with PJS and AAA, the Supreme Court saw no error of principle justifying interference with the evaluative balance struck by the trial judge and affirmed by the Court of Appeal.
Holding and Implications
APPEAL DISMISSED.
Immediate effect: the injunction and damages awarded to the Respondent remain in force; the Appellant may not republish the investigative details within England and Wales.
Broader implications: the judgment authoritatively confirms that individuals under criminal investigation, but not charged, generally enjoy a reasonable expectation of privacy regarding that fact and related details. Media organisations must therefore exercise heightened caution when publishing leaked or confidential pre-charge material, and should expect courts to scrutinise public-interest justifications with particular rigour where publication threatens ongoing investigations or derives from obvious breaches of confidence. No new cause of action was created, but the decision consolidates and elevates the existing line of authority on pre-charge anonymity.
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