Privacy Pre-charge And Public Interest: Where To Draw The Line

• Published date: 08 February 2022
• Subject Matter: Privacy, Privacy Protection
• Law Firm: Bindmans LLP
• Author: Ms Kate Goold

A good reputation is hard to earn and very easy to lose, never more so than when an individual is connected to a criminal investigation. The extent to which a person who has not been charged with an offence has a reasonable expectation of privacy has recently been litigated in the Supreme Court in the case of ZXC v Bloomberg LP. Judgment is expected in early 2022.

The ZXC case dates back to 2016 and relates to the publication by Bloomberg of a confidential Letter of Request (LoR) from a UK Law Enforcement Body (UKLEB) to another foreign agency, requesting banking and business records from a company and certain named individuals, in order to assist with their investigation into possible corruption. The article made it clear that one of the named individuals was suspected of criminal activity, and disclosed confidential information relating to the investigation. An application for an injunction by that individual failed, but they did successfully claim for damages for the misuse of their private information.

Bloomberg appealed that decision, but the High Court (ZXC v Bloomberg LP [2020] EWCA Civ 611 (15 May 2020) dismissed the appeal and held that individuals under police investigation, as a matter of general principle, have a reasonable expectation of privacy before charge. It was accepted by all parties that this does not apply post charge.

The issues raised involve two competing (qualified) rights under the European Convention on Human Rights (ECHR):

• Article 8: The right to respect for private and family life
• Article 10: The right to freedom of expression

In balancing these two competing rights, the court in ZXC endorsed and approved the two-stage test, as set out in McKennitt v. Ash [2008] QB 73 (CA):

Stage 1: Does the individual have a reasonable expectation of privacy in the relevant information?

Stage 2: If such a reasonable expectation exists, an enquiry and evaluation should be undertaken to establish whether that expectation is outweighed by a countervailing interest (such as the public's right or need to know).

When deciding on 'reasonable expectation of privacy', the court followed the factors as set out in Murray v. Express Newspapers plc and another [2009] Ch 481 at [36]):

1. The attributes of the claimant
2. The nature of the activity in which the claimant was engaged
3. The place in 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
7. The...