Privacy In The Context Of Criminal Investigations: Bloomberg LP v ZXC [2022] UKSC 5

• Published date: 22 February 2022
• Subject Matter: Criminal Law, Privacy, Privacy Protection, Crime
• Law Firm: 1 Chancery Lane
• Author: Mr Ian Clarke

On 16 February 2022 the Supreme Court handed down their unanimous judgment in Bloomberg LP v ZXC [2022] UKSC 5. The Court held that, in general, a person who is under criminal investigation has, before being charged, a reasonable expectation of privacy in respect of information relating to that investigation.

The claimant, ZXC, is an American citizen who has indefinite leave to remain in the UK. He worked for a publicly-listed company and became the chief executive of a regional division of that company. ZXC brought a claim for misuse of private information ("MPI") after Bloomberg published an article relating to the activities of a company in ZXC's division that had been subject to a criminal investigation by a UK law enforcement body.

One of the issues that the Supreme Court had to resolve was whether the Court of Appeal had been wrong to hold that there is a general rule that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.

In answering that question, the Court considered the judgment of Sir Anthony Clarke MR in Murray v Express Newspapers plc [2008] EWCA Civ 446 which endorsed a two-stage test for whether there had been a misuse of private information: at stage one the question is whether the claimant had a reasonable expectation of privacy in the relevant information; if so, at stage two the question is whether that expectation is outweighed by the countervailing interest of the publisher's right to freedom of expression.

At ['36] of Murray it was noted that "the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case". Those circumstances are likely to include what have become known as the "Murray factors", which are:

(1) the attributes of the claimant;

(2) the nature of the activity in which the claimant was engaged;

(3) the place at which it was happening;

(4) the nature and purpose of the intrusion;

(5) the absence of consent and whether it was known or could be inferred;

(6) the effect on the claimant; and

(7) the circumstances in which and the purposes for which the information came into the hands of the publisher.

At ['72] the Court held:

"We consider that the general rule or the legitimate starting point adumbrated in the courts below in relation to this category of information is similar to what can be termed a general rule in relation to certain other...