Privacy and confidentiality: Expectation of privacy in respect of criminal investigations

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Privacy and confidentiality: Expectation of privacy in respect of criminal investigations

Published 7 April 2022

The Supreme Court has confirmed that an individual who is the subject of a criminal investigation will usually have a reasonable expectation of privacy in respect of the investigation until he or she is charged.

THE FACTS

The claimant in this case worked for a publicly listed company which operated in several jurisdictions. The individual and their employer became the subject of a criminal investigation by a UK law enforcement agency.  As part of the criminal investigation, the UK law enforcement agency sent a letter of request to its counterpart in a foreign state.  In this letter, the UK law enforcement agency sought documents and information relating to the individual.  The letter specified that the contents of the letter should remain confidential.

Bloomberg obtained a copy of the letter and published an article reporting that information had been requested in relation to the individual, and detailing the matters in respect of which the individual was being investigated.  The individual brought a claim against Bloomberg for misuse of private information. 

The individual’s claim was successful, with the High Court ruling that Bloomberg had misused the individual’s private information. Bloomberg appealed unsuccessfully to the Court of Appeal and to the Supreme Court. 

Key points in the courts’ judgments were that:

  • When considering claims of misuse of private information, courts should use a two stage test.
  • The first step is to consider whether the claimant objectively has a reasonable expectation of privacy in the relevant information, considering all the circumstances of the case and whether the expectation is outweighed by the publisher’s right to freedom of expression.
  • This second step involves a balancing exercise by the court between the individual’s right to privacy and the publisher’s right to freedom of expression (both rights being granted by the European Convention on Human Rights).
  • The balancing exercise will always be fact specific. There may be rare circumstances where it will be appropriate for the press to publish information about a criminal investigation before an individual is charged – the court gave an example of where the press alleges inadequacies in the conduct of the investigation.
  • The legitimate starting point, however, is that a person under criminal investigation has a reasonable expectation of privacy in respect of information relating to the investigation unless and until they are formally charged.
  • The rationale for this starting point is that the publication of this kind of information ordinarily causes damage to the person’s reputation together with harm to multiple aspects of their physical and social identity, all of which are protected by their right to privacy.

WHAT DOES THIS MEAN FOR EMPLOYERS?

While the case only relates to an individual’s right to privacy, employers’ reputations may also be damaged by publication of details of investigations into their employees’ alleged wrongdoing.  This ruling may therefore be helpful for employers, particularly as it is likely to be relevant to publishing details about regulatory, as well as criminal, investigations. 

Bloomberg LP (Appellant) v ZXC (Respondent)

Authors

Ceri Fuller

Ceri Fuller

London - Walbrook

+44 (0)20 7894 6583

Zoë Wigan

Zoë Wigan

London - Walbrook

+44 (0)20 7894 6564

Hilary Larter

Hilary Larter

Leeds

+44 (0)113 251 4710

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