In Bloomberg LP v ZXC  UKSC 5, the Supreme Court held that as a general rule a person under criminal investigation, and prior to being charged, had a reasonable expectation of privacy in respect of information relating to that investigation. Although this was only a general rule, or legitimate starting point rather than a presumption, many fear that it will have a chilling effect on press freedom.
A media organisation had published reports that a UK investigator was investigating corruption allegations in relation to the company of which Z was an executive. No charges were brought against Z, who brought proceedings for misuse of private information; the court finding that Z’s article 8 rights outweighed the organisation’s article 10 rights. The Court of Appeal upheld that decision.
The Supreme Court in dismissing the appeal found that the general rule or legitimate starting point described by the Court of Appeal was not a legal presumption, and whether there was a reasonable expectation of privacy was a fact-specific enquiry. The rationale for the starting point was that publication of such information ordinarily caused damage to the person’s reputation and to multiple aspects of the person’s physical and social identity protected by article 8. Similarly, the public’s understanding of the effect on a person of publication of information that they were suspected of having committed a criminal offence was a question of fact rather than of law. The question was how others would react to the publication of information that the person was under investigation, and the person’s reputation would ordinarily be adversely affected, causing prejudice to the right to respect for private life.
It was also inappropriate to read the defamation law concept of a hypothetical reader into the tort of misuse of private information. In misuse of private information, part of the factual enquiry was as to the effect on the claimant of publication, and that did not require an objective assessment. However, with respect to reputational damage, a person’s reputation fell within the scope of private life within article 8, provided that the attack on reputation attained a certain level of seriousness and caused prejudice to that right. Further, this case turned not on identifying the nature of the activity (potential corruption) but on the private nature of the information about the investigation. The private nature of that investigation was thus not affected by the specifics of the activities being investigated. The courts below had not failed to give consideration to the claimant’s attributes. Z’s status as a businessman involved in a large public company meant that the limits of acceptable criticism of him were wider than in respect of a private individual, but that had to be balanced against the effect of publication on the claimant’s privacy. Therefore, the Supreme Court found that the balance had correctly been applied in Z’s favour.
The decision, it is argued, is extremely generous to an individual’s privacy and reputational interests, and potentially damaging to press freedom and investigative journalism. Following the case of Sir Cliff Richard v BBC  EWHC 1837 Ch, it was feared that non-disclosure of details with respect to early police investigations was to become the norm, the press having to wait at least until the individual is charged. This could have a chilling effect on press reporting where it raises matters of public debate, which are beyond question in this case, and in Richard. That such publication and debate is discouraged, even as a starting point, could deter the media from investigating and reporting on such matters, and might well be in conflict with the European Court’s jurisprudence on free speech and public debate. What the decision might do, of course is to provide greater latitude to the press than before when reporting after arrest; but we shall have to see.