UK Supreme Court: People under criminal investigation have a reasonable expectation of privacy until charged | McDermott Will & Emery

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On February 16, 2022, the Supreme Court of the United Kingdom in Bloomberg LP vs. ZXC [2022] UK SC 5 unanimously upheld two lower court rulings that Bloomberg erred in publishing an article identifying a US executive under investigation for allegations of fraud, bribery and corruption, as he had a reasonable expectation of privacy unless and until charged.

The court found that Bloomberg misused the executive’s private information when it reported on a confidential request letter sent by a UK law enforcement agency to its counterpart in a foreign state.

As a general rule or as a legitimate starting point, a person who is the subject of a criminal investigation has a reasonable expectation of privacy with respect to information relating to that investigation, unless and until be officially charged.

This judgment is important not only for confirming the reputational protections available to those under criminal investigation, but also for the development of English privacy law more generally. This shows a willingness of the courts to strengthen (at least on an individual basis) the right to privacy in a world where this right is increasingly contested.

The leader (a US citizen) and his employer have been the subject of a criminal investigation by a UK law enforcement agency. During this investigation, the British agency sent a confidential request letter to its counterpart in a foreign state requesting, among other things, information and documents relating to the executive. The letter expressly requested that its existence and contents be kept confidential.

Bloomberg obtained a copy of the letter and published an article reporting that information had been requested regarding the executive and detailing the matters he was being investigated. Bloomberg declined to remove the article from its website. Following an unsuccessful request for an interim injunction, the executive sued Bloomberg for the tort of misuse of private information.

This tort is relatively new to English law, having first been recognized as a separate cause of action in the early 2000s in model Naomi Campbell’s successful appeal to the House of Lords in her claim against The mirror newspaper for publishing photos of her leaving a rehab clinic after publicly denying she was a recovering drug addict.

The executive won the case at first instance, still on appeal to the Court of Appeal and also to the Supreme Court, with the Supreme Court confirming that the tort requires a two-step test:

  • First, whether the claimant objectively has a reasonable expectation of confidentiality of the relevant information having regard to all the circumstances of the case.
  • Second, if the expectation is outweighed by the publisher’s right to free speech. This involves a balancing exercise between the applicant’s right to privacy under Article 8 of the European Convention on Human Rights (ECHR) and the right to freedom of expression under Article 10 of the Publisher’s ECHR.

Bloomberg made four arguments challenging the lower courts’ suggestion that there may be a “general rule” or “legitimate starting point” that a person under criminal investigation has, before being charged, a reasonable expectation of privacy with respect to information relating to this investigation:

  • Bloomberg argued that because the public knows there is a presumption of innocence under English law, the application of a general rule or legitimate starting point is not valid because it overstates the extent to which publication would in fact harm an individual’s reputation. The Supreme Court did not take this lack of rigor into account, noting that it is undeniable that a person’s reputation will normally be harmed if they are reported as the subject of a criminal investigation – whether they are or not charged – infringing on his right to respect for private life. the life.
  • Bloomberg argued that lower courts were wrong to rely on the human psychological tendency to assume that there is “there is no smoke without fire”, because it goes against well-established principles of the law of the family. defamation that the ordinary reasonable reader can distinguish suspicion from guilt. However, the Supreme Court held that the tort of misuse of private information is a separate tort from defamation and, unlike the latter, its purpose is not merely to protect an individual from the publication of false information. , but also to protect his privacy (regardless of the veracity or falsity of the information).
  • Bloomberg argued that information should not be protected on the basis that it damages reputation, but rather on the basis that it belongs to that part of the plaintiff’s life that does not concern anyone else. As such, Bloomberg argued that the executive’s business activities should not be shielded. The Supreme Court found this unduly restrictive, holding that a person’s business reputation falls within the scope of Article 8 of the ECHR, provided that the damage to reputation is serious enough to infringe the right of this person to the respect of his private life.
  • Bloomberg argued that the lower courts applied the wrong legal test at the first stage, because consideration of “all the circumstances of the case” should have included the nature of the alleged activity (that is). i.e. fraud, bribery and corruption) and that executives involved in the affairs of large public companies knowingly expose themselves to media scrutiny. However, the Supreme Court found that the private nature of the information was not affected by the specifics of the activities under investigation and, while executive status may mean that the limits of acceptable criticism are wider than for an individual, there is always a limit.

Comment

While, as a legal principle, individuals are presumed innocent until proven guilty, it is widely accepted that an innocent person’s reputation, and therefore their right to privacy, can be seriously and permanently harmed by publication of the fact that they are the subject of a criminal investigation. This is why state investigative bodies generally do not identify those under investigation prior to indictment and partly why, in this case, the UK agency requested that the existence and content of the letter remain confidential.

This point was raised in the Leveson Inquiry Report, was endorsed by the government and the judiciary, and has been raised in a series of cases in lower courts. In 2016, an independent review of the Metropolitan Police Service’s handling of investigations into alleged non-recent sexual offenses against persons of public record found:

Current provisions […] caused the most appalling misfortune and distress to many suspects, their families, friends and supporters. These consequences could be avoided by protecting anonymity. No one is immune from false accusation and harmful exposure under the current provisions. A reputation built on a lifetime of public service or popular entertainment can be extinguished in an instant.

The judgment against Bloomberg in this case is therefore important because it provides confirmation from the highest court in the land that there is indeed a “general rule” of anonymity before indictment.

Although the decision is not welcome for the UK media (which could argue that the decision prevents journalists from subjecting the conduct of companies and individuals to proper scrutiny), it is a positive development for the persons under investigation (and, by association, their employers) given the protection it affords to their reputation prior to charge. It is likely that if these people are not charged, their participation in the investigation will never reach the public’s attention.

In terms of wider consequences:

  • It will be interesting to see whether this judgment lowers the bar for law enforcement officials to include individuals in their investigations, given the reduced likelihood of those individuals’ identities being revealed prior to charge.
  • Whether there is a reasonable expectation of privacy depends on the facts and a balancing exercise must be undertaken between the right to privacy and the right to freedom of expression. Therefore, in some cases, it may still be appropriate for the media to publish the identities of those under investigation prior to indictment. Such circumstances are likely to be rare (the court identified a possible example when the press alleges shortcomings in the conduct of the investigation). Except in the most obvious cases, the press would therefore run a significant risk of being prosecuted.
  • Given that non-governmental companies may also benefit from the protections of Article 8 of the ECHR, there is perhaps a case for arguing that they too should be granted anonymity prior to indictment, at least until until the competent agency announces that it has opened a formal investigation. However, this argument can be thrashed at both the first and second stage of the test, given that there would normally be no reasonable expectation of privacy with respect to non-confidential information. of the company and, even if there were, the balancing exercise for a company could well decide on the side of freedom of expression.
  • Finally, it is interesting to see this judgment in the context of the changing landscape of data privacy law in the UK and the increased activism of the courts to consolidate these rights. As noted above, it was the predecessor of the Supreme Court (the House of Lords) that in the early 2000s first distinguished the tort of misuse of private information. This offence, together with the rights of individuals under the General Data Protection Regulation (GDPR) and the investigative powers of the Information Commissioner’s Office, now form the basis for the enforcement of privacy rights. confidentiality of data of individuals, with importance not only for business surveys. but also for civil litigation more generally. Although the Supreme Court may have narrowed the scope of class action claims in the UK for breaches of data privacy laws in its recent decision in Lloyd vs. Google [2021] UK SC 50 (since the need to separate proceedings between liability and damages makes such cases unsuitable for litigation funding), he nevertheless concluded that the tort of misuse of private information would likely have been available for claims brought on on an individual basis and expressly did not comment on whether such claims could be brought under the GDPR.

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