Bloomberg LP (Appellant) v ZXC (Respondent) [2022] UKSC 5

Bloomberg LP (Appellant) v ZXC (Respondent) [2022] UKSC 5 concerned an appeal from the Court of Appeal ([2020] EWCA Civ 611) in which the Supreme Court unanimously dismissed the appeal, affirming the lower courts’ findings that publication by Bloomberg LP of information about a criminal investigation into the respondent constituted a misuse of private information.

The respondent, ZXC (referred to as the claimant), was a United States citizen with indefinite leave to remain in the United Kingdom who had worked as a regional chief executive for a publicly listed company operating overseas. In 2016 Bloomberg published an article concerning the claimant’s division’s activities in a foreign state, which had been the subject of a United Kingdom law enforcement body (UKLEB) investigation since 2013. The article contained information drawn almost exclusively from a confidential Letter of Request which the UKLEB had sent to the foreign state under the United Nations Convention against Corruption. The information published included details that the UKLEB had sought banking and business records relating to the claimant, that the UKLEB believed the claimant had committed fraud by false representation by dishonestly representing that an asset was valuable based on data for an entirely different asset, and that the UKLEB was investigating whether the claimant was part of a conspiracy to defraud his employer. The claimant had been interviewed by the UKLEB but had not been charged with any offence.

Nicklin J at first instance upheld the claim for misuse of private information, awarded damages of £25,000, and granted an injunction preventing further publication of the article or the information within England and Wales. The judge found that the article had been published following a confidential Letter of Request being given to a Bloomberg journalist in what must have been, and should have been recognised as, a serious breach of confidence. The judge found that no one at Bloomberg involved in publication of the article was aware of how sensitive the Letter of Request was, and that the editorial process had failed to appreciate that the article potentially engaged the privacy interests of the claimant. The judge held that in general a person does have a reasonable expectation of privacy in a police investigation up to the point of charge. Having conducted the stage one enquiry by reference to the Murray factors, the judge concluded that the claimant had a reasonable expectation of privacy in respect of the information. At stage two, the judge found that although the issue of corruption in the foreign state was a matter of high public interest, the article had done little more than report contents of the Letter of Request rather than present the fruits of Bloomberg’s own investigation. The judge took as his starting point that there was a very clear public interest that the contents of the Letter of Request should not be published and that the confidentiality of the UKLEB’s investigation should be maintained. He concluded that the claimant’s article 8 right prevailed over Bloomberg’s article 10 right to freedom of expression.

The Court of Appeal dismissed Bloomberg’s appeal. Giving the leading judgment, Simon LJ stated that those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion. He characterised this as the legitimate starting point, whilst expressly accepting that such an expectation is not invariable. Simon LJ rejected Bloomberg’s argument that the judge had wrongly conflated private information with confidential information, holding that the judge had been entitled to place reliance on the highly confidential nature of the Letter of Request when finding that the information was private. In relation to stage two, Simon LJ found that there was no reason to disagree with the judge’s view that there was no sufficient public interest to justify disclosure of the Letter of Request’s contents. He held that although there was a substantial and clearly identified public interest in maintaining the confidentiality of the Letter of Request, the fact that the UKLEB had not advanced a claim for breach of confidence did not preclude this being a factor to be weighed when balancing the respective article 8 and article 10 interests. Underhill LJ gave a short concurring judgment emphasising that the proposition that a person has a reasonable expectation of privacy in relation to a police investigation is not a universal rule and that the circumstances of a particular case may justify a different conclusion. Bean LJ agreed with both judgments.

Bloomberg appealed to the Supreme Court on three grounds. First, that the Court of Appeal was wrong to hold that there is a general rule, applicable in the present case, that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation. Secondly, that in a case in which a claim for breach of confidence was not pursued, the fact that information published by Bloomberg about a criminal investigation originated from a confidential law enforcement document rendered the information private and undermined Bloomberg’s ability to rely on the public interest in its disclosure. Thirdly, that the Court of Appeal was wrong to uphold the findings of Nicklin J that the claimant had a reasonable expectation of privacy in relation to the published information complained of, and that the article 8/10 balancing exercise came down in favour of the claimant.

The Supreme Court gave a single judgment by Lord Hamblen and Lord Stephens, with whom Lord Reed, Lord Lloyd-Jones and Lord Sales agreed. The court began by clarifying the nature of what the lower courts had described as a general rule or legitimate starting point. The court emphasised that this was not a legal rule or legal presumption, let alone an irrebuttable presumption, and that the determination as to whether there is a reasonable expectation of privacy in relevant information is a fact-specific enquiry. The general rule or legitimate starting point does not invariably lead to a finding that there was objectively a reasonable expectation of privacy in the information, and whether it arises in a particular case will always depend upon the individual facts of that case. The court explained that the reference to a general rule or a legitimate starting point means that once it is established that the relevant information was that a person, prior to being charged, was under criminal investigation then the correct approach is for a court to start with the proposition that there will be a reasonable expectation of privacy in respect of such information and thereafter consider by reference to all the circumstances of the case whether the reasonable expectation either does not arise at all or was significantly reduced. The rationale for such a starting point is that publication of such information ordinarily causes damage to the person’s reputation together with harm to multiple aspects of the person’s physical and social identity such as the right to personal development, and the right to establish and develop relationships with other human beings and the outside world, all of which are protected by article 8 of the European Convention on Human Rights.

The court rejected Bloomberg’s submission that the general rule or starting point is unsound because it significantly overstates the likelihood of publication of the information causing damage to the claimant’s reputation and underestimates the public’s ability to observe the legal presumption of innocence. The court held that the presumption of innocence is a legal presumption applicable to criminal trials, but in this context the question is how others, including a person’s inner circle, their business or professional associates and the general public, will react to the publication of information that that person is under criminal investigation. The court held that all the material now admits to only one answer, consistent with judicial experience, namely that the person’s reputation will ordinarily be adversely affected causing prejudice to personal enjoyment of the right to respect for private life such as the right to establish and develop relationships with other human beings.

The court also rejected Bloomberg’s reliance on well-established principles in defamation law that the ordinary reasonable reader is not unduly suspicious or avid for scandal, is capable of distinguishing suspicion or investigation from guilt, and can be taken to know about things that are common knowledge. The court held that the tort of misuse of private information is a separate, distinct and stand-alone tort with different constituent elements which serves a distinct purpose. The court considered that it is inappropriate to read across the concept of a hypothetical reader from the tort of defamation into the tort of misuse of private information.

The court rejected Bloomberg’s submission that information is protected only because information of that nature belongs to a part of the claimant’s life which is of no one else’s concern, and that information in relation to the claimant’s business activities does not fall within an area of his life that is no one else’s concern. The court held that this was an unduly restrictive view of the protection afforded by article 8 of the European Convention on Human Rights. The court considered that publication of information about an official criminal investigation into a person’s business activities can fall within the concept of private life. The court held that article 8 does encompass a reputational dimension which in the United Kingdom is primarily protected by the tort of defamation, but that reputational damage attaining a certain level of seriousness and causing prejudice to personal enjoyment of the right to respect for private life can also be taken into account in determining whether information is objectively subject to a reasonable expectation of privacy in the tort of misuse of private information.

The court rejected Bloomberg’s submission that the courts below failed to apply the correct legal test at stage one which involves consideration of all the circumstances of the case. The court held that the application by the courts below of a general rule or legitimate starting point did not mean that they did not apply the multi-factorial analysis set out in Murray. The court held that the judge was entitled to identify the most significant Murray factor as being the circumstances in which and the purposes for which the information came into the hands of the publisher. The court rejected Bloomberg’s argument that the nature of the activity in which the claimant was engaged should have been identified as alleged corruption in relation to his company’s activities in the foreign country rather than being subject to the UKLEB’s investigation. The court held that in the context of information relating to a criminal investigation, the courts below were correct to identify the activity as the criminal investigation in circumstances where the information which the claimant seeks to characterise as private are the fruits of that investigation. The court also rejected Bloomberg’s argument that inadequate consideration was given to the Murray factor of the attributes of the claimant. The court accepted that the status of the claimant as a businessman actively involved in the affairs of a large public company means that the limits of acceptable criticism of him are wider than in respect of a private individual, but held that this does not mean that there is no limit, nor does it mean that this circumstance is determinative. The court noted that the ordinary conclusion in relation to the effect of publication of information that an individual is under criminal investigation is that damage occurs whatever his characteristic or status, and that ordinarily greater damage would be anticipated to a businessperson actively involved in the affairs of a large public company than to a private individual.

In relation to the second ground of appeal, the court held that neither the judge nor the Court of Appeal held that the fact that the information originated from a confidential document rendered the information private or meant that Bloomberg could not rely on the public interest in its disclosure. The court held that the judge treated the confidentiality of the information as being a relevant and important factor at both stage one and stage two but did not treat it as being determinative, and that the Court of Appeal rightly held that such an approach was justified and involved no error of law. The court held that at stage one, the confidentiality of the Letter of Request was clearly a relevant circumstance in relation to the Murray factor of the circumstances in which and the purposes for which the information came into the hands of the publisher. The court held that information may be private but not confidential, or confidential but not private, but that often confidentiality and privacy will overlap and confidentiality may well be relevant to whether there is a reasonable expectation of privacy. The court held that at stage two, the judge was right to place reliance on the public interest in the observance of duties of confidence when carrying out the balancing exercise. The court held that there was a general public interest in the observance of the duties of confidence and a specific public interest in maintaining the confidence of the Letter of Request so as not to prejudice the criminal investigation, and that as a suspect in the investigation, the claimant also had a particular interest in avoiding prejudice to, and maintaining the fairness and integrity of, that investigation.

In relation to the third ground of appeal, the court held that this ground was dependent upon Bloomberg establishing that the Court of Appeal erred in law on the first and second issues, which it had not done. The court held that if no error of approach is shown then there are no grounds in this case for interfering with the judge’s decision in relation to the balancing exercise. The court noted that the exercise of balancing article 8 and article 10 rights has been described as analogous to the exercise of a discretion, and that if undertaken on a correct basis, will not readily attract appellate intervention.

In short, the Supreme Court unanimously dismissed the appeal, holding that the courts below were correct to hold that, as a legitimate starting point, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation and that in all the circumstances this was a case in which that applies and there is such an expectation.

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