The UK Supreme Court held Wednesday that a person under criminal investigation has a “reasonable expectation of privacy” with regard to information about that investigation prior to being charged. This judgment is anticipated to have a great impact on journalism.
The respondent and the company he worked for (identified anonymously as “ZXC” and “X Ltd.” respectively) had been subject to a criminal investigation by a law enforcement body (identified in the judgment as the “UKLEB”) since 2013 for X Ltd.’s actions in a foreign country.
In 2016, media organization Bloomberg published the contents of a confidential Letter of Request by the UKLEB to the foreign state to share evidence since it believed ZXC was guilty of corruption and bribery. Bloomberg’s move defied national guidelines given the letter’s confidentiality indicators. The letter was marked “confidential” and contained a confidentiality statement, and UKLEB warned about the harm to the investigation’s objectivity.
Claiming a tort of misuse of private information, ZXC sought damages and injunctive relief against Bloomberg. For such a claim, he had to prove he had a reasonable expectation of privacy under Article 8 of the European Convention on Human Rights (ECHR) and that this expectation outweighed the publisher’s freedom of expression under Article 10 of the ECHR. In 2019, the trial judge ruled in his favor and awarded damages of £25,000. Bloomberg’s appeal was dismissed by the Court of Appeal in 2020, but the Supreme Court agreed later that year to hear the matter.
The Supreme Court restricted itself to the issue of whether, as a “general rule,” a person under criminal investigation had a reasonable expectation of privacy. It ruled affirmatively, clarifying such a “general rule” would only serve as a “legitimate starting point” for deciding such cases and not as a legal presumption.
Future claimants would still need to establish their expectations on the circumstances of their cases. Such circumstances would include claimants’ attributes, the nature and place of the alleged activity, whether the claimant had consented and the means by which the publisher gained access to such information.
The court also reviewed guidelines by the College of Policing, which required exceptional circumstances and a “legitimate policing purposes,” such as a threat to life, for breaching a suspect’s right to privacy. While it did rule in favor of ZXC, the court noted that this right did not extend once a person was charged with, and not merely being investigated for, an offence.
