Bloomberg LP – Court Ruling (United Kingdom, 2022)

The data subject (respondent) worked for a publicly listed company. The appellant is an international media organisation who obtained a confidential Letter of Request (LoR) sent by a UK law enforcement body (UKLEB) to a foreign state seeking legal assistance in criminal investigations against the data subject on corruption and conspiracy. The LoR contained confidential information about the UKLEB’s state of investigation on whether the data subject defrauded a publicly listed company. The appellant intended to publish an article with sensitive information from the LoR about the data subject's work for the company, the status of the criminal investigation and who and what were the targets of the UKLEB investigation. Before the publication, the appellant contacted the UKLEB and the data subject’s solicitor to inform them about their intentions. The UKLEB expressed concerns that the publication could seriously harm the investigations and advised the appellant not to proceed with the publication. The appellant ignored the warnings, and the article was published in 2016. Subsequently, the data subject was denied an interim injunction to prevent further publication on the grounds that the data subject’s right to privacy under Article 8 ECHR was outweighed by the appellant’s right to freedom of expression under Article 10 ECHR. The trial court later established that the factual basis for this decision was wrong, and the injunction should have been granted. At trial, the data subject claimed to have a reasonable expectation of privacy in information published in the Article and that the media organisation misused their private information by publishing the article. Applying the two-stage test summarised by Buxton LJ in McKennitt v Ash [2008] QB 73 (CA) to determine whether (1) the data subject has a reasonable expectation of privacy and (2) that expectation is outweighed by public interest, the trial court found that “there was a very clear public interest that the contents of the LoR should not be published and that the confidentiality of UKLEB’s investigations should be maintained” [29]. The trial court held that the data subject’s right under Article 8 ECHR prevailed, awarded damages for misuse of private information and granted an injunction preventing the media organisation from further publishing the article. The media organisation appealed to the Court of Appeal (CA) and later to the Supreme Court on the grounds that the CA ignored well-established defamation law, incorrectly considered the effect of reputational damage and overstated the negative impact of publication on an individual’s reputation “given the public’s ability to observe the presumption of innocence.” [74] The Supreme Court had to decide, inter alia, whether a person under criminal investigation has, prior to being charged, according to stage one of the two-stage test a reasonable expectation of privacy in respect of information relating to that investigation. [63] The Supreme Court dismissed the appeal and confirmed the CA’s decision that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation. On the general rule and legitimate starting point As to the starting point, the Supreme Court noted that a person has no “invariable or unqualified right to privacy during an investigation” [68] and needs to set out and prove “the circumstances establishing that there was objectively a reasonable expectation of privacy.” [69] However, the publication of information relating to criminal investigations “ordinarily causes damage to the person’s reputation together with harm to multiple aspects of the person's physical and social identity” [71] Thus, when a person is under criminal investigation, courts are advised to “start with the proposition that there will be a reasonable expectation of privacy in respect of such information” [70] and must then consider whether the presumption can be upheld in the individual case. On the negative effects on an individual’s reputation On the basis that information about criminal investigations against a suspect cause reputational damage, the Supreme Court identified a consistent course of dealings regarding the protection of a suspect’s privacy. However, once a suspect is charged, the identification of the individual is in the interest of open justice and there can be no reasonable expectation of privacy thereafter. The Supreme Court held that, as a matter of public policy, the identity of suspects should not be revealed prior to the point of charge. The Supreme Court presented extensive legal authority showing that a corresponding uniform general practice has been established by the courts and UKLEB: the list refers, inter alia, to the Leveson Inquiry Report, Attorney General v MGN Ltd [2011] EWHC 2074 (Admin); [2012] 1 WLR 2408 [82], the “Guidance on Relationships with the Media” of the College of Policing [83], recommendations of the Independent Office for Police Conduct [85], the Commissioner of the Metropolitan Police, the Crown Prosecution Service [86], and confirming ERY v Associated Newspapers Ltd [2016] EWHC 2760 (QB); [2017] EMLR 9 and Richard v British Broadcasting Corpn [2018] EWHC 1837 (Ch); [2019] Ch 169 whereas suspects have a reasonable expectation of privacy in relation to police investigations. [94f] On the presumption of innocence The Supreme Court points out that the presumption of innocence is a legal concept. In contrast, Khuja v Times Newspapers Ltd [2017] UKSC 49; [2019] AC 161 established “that the public’s understanding of the effect on a person of publication of information that they are under police suspicion of having committed a criminal offence is a question of fact (…).” [107] Hence, the question is how others will react to the publication. Here, the Supreme Court refers back to legal authority which confirmes “that the person’s reputation will ordinarily be adversely affected (…)” [108] and relativises the force of the social presumption of innocence. On the relevance of defamation law The tort of misuse of private information must be distinguished from the tort of defamation. Unlike in defamation, the purpose of misuse of private information is not to protect against publication of untrue information, but “to protect an individual’s private life, whether the information is true or false” [111] The Supreme Court pointed out that the data subject had not sued for defamation but for misuse of private information and it would be inappropriate to “read across the concept of a hypothetical reader from the tort of defamation into the tort of misuse of private information” [112] On the reputational damage With reference to the ECtHR decisions Denisov v Ukraine (Application No 76639/11) and Pfeifer v Austria (Application No 12556/03) (2007) 48 EHRR 8, the Supreme Court confirmed that information about a person’s reputation [118] falls within the realm of “private life” under Article 8 ECHR. Reputational damage of a certain level of seriousness can “be taken into account in determining whether information is objectively subject to a reasonable expectation of privacy in the tort of misuse of private information.” The Supreme Court concluded that information “may be characterised as private because it is reputationally damaging provided it attains a certain level of seriousness and consequentially impacts on the personal enjoyment of the right to respect for private life.” [125]