Reasonable Expectation Of Privacy During Criminal Investigations

It is likely to be widely accepted by most people that, if they heard that an individual was being investigated for a serious crime, whether they had been charged or not, they are likely to think the worst of that individual.

In the case of Bloomberg LP v ZXC [2022], the Supreme Court had to consider whether the Judge at first instance and the Court of Appeal had been wrong to hold that an individual being investigated for a crime had a reasonable expectation of privacy in respect of correspondence relating to the investigation.

Bloomberg LP v ZXC

Case background

ZXC and the company that they worked for were USA-based but conducted business in other jurisdictions. ZXC and his employer were subject to investigations by the UK Authorities. During the investigation and prior to any charges being brought, the UK Authorities wrote to a foreign counter-part on a confidential basis asking for documents and information to aid in their investigation of ZXC. Bloomberg obtained a copy of the letter and published an article in respect of it. Bloomberg has refused to remove the article, ZXC brought a claim against it for misuse of private information.

ZXC claimed that he had a reasonable expectation of privacy in relation to both the request for information by the UK Authorities in respect of their investigation and the allegations that they were investigating ZXC for. In agreeing with ZXC’s position, the first instance Judge found that the balance between ZXC’s right to privacy and Bloomberg’s right to freedom of expression, the balance favoured ZXC. The Court of Appeal upheld the original decision and Bloomberg appealed to the Supreme Court.

The Supreme Court also upheld the original decision. All of the Justices unanimously agreed that an individual subject to investigation by law enforcement authorities, before they are charged, is entitled to privacy in respect of the information relating to that investigation and details of the case being pursued. In doing so, the Court affirmed that the law of misuse of private information is different from defamation in that the truth of the information is not determinative in respect of liability. In this regard, Lord Hamblen and Lord Stephens stated:

Comment

This decision is extremely important in the area of privacy as it makes it beyond question an individual’s right to privacy in the context of a criminal investigation.