UK Supreme Court Ruling In ZXC: Radical Curtailment Of Press Freedoms Or A Principled Restatement And Alignment Of Existing Law And Practice?

• Published date: 17 March 2022
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Privacy Protection, Trials & Appeals & Compensation
• Law Firm: WilmerHale
• Author: Mr Lloyd Firth and Anna Gaudoin

On 16 February 2022, in its judgment in Bloomberg LP v ZXC,¹ the UK Supreme Court unanimously held that in general, and 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.

The decision has been widely reported (in the British press)² as failing to strike the right balance between the press's right to freedom of expression and the individual's right to respect for private and family life, and as a serious threat to the future of investigative journalism. This article situates the Supreme Court's judgment in its proper context and considers whether it would be more accurate to regard the judgment as a principled restatement of established UK precedent and law enforcement practice.

Background

ZXC and his employer were the subject of a criminal investigation by a UK Law Enforcement Body (UKLEB). During the investigation, the UKLEB sent a confidential Letter of Request (the Letter) to the authorities of a foreign state requesting information relating to ZXC as part of a mutual legal assistance request. The Letter expressly requested that no person be notified of the existence or contents of the Letter in order not to prejudice the ongoing investigation.

Having obtained a leaked copy of the Letter, Bloomberg approached the UKLEB in advance of publication of an article reporting the contents of the Letter and the matters in respect of which ZXC was being investigated, including the UKLEB's suspicions, assessments and preliminary conclusions in respect of the evidence against ZXC. Notwithstanding the UKLEB notifying Bloomberg that it believed the publication of the Letter's contents would pose a material risk of prejudice to its criminal investigation, Bloomberg published its article in 2016. The article did not otherwise detail any findings or conclusions that Bloomberg came to as a result of its own investigation.

After Bloomberg refused to remove the article from its website, ZXC applied unsuccessfully for an interim injunction and later brought a successful claim for misuse of private information. Notably, the judge at first instance found there to be no recognition in the documentary evidence "of the highly confidential nature" of the letter or "any record of whether there was a careful ... (or indeed any) assessment of the potential consequences of breaching that confidentiality or any weighing-up of this against the...