The supreme court has ruled against Bloomberg News in a landmark privacy case that will make it harder for British media outlets to publish information about individuals subject to criminal investigations.
In 2016 Bloomberg named an American business executive at a large public company who was facing a criminal inquiry by a British regulator. The article was based on a confidential letter Bloomberg had obtained, which revealed that the businessman was being investigated in relation to claims his company had been involved in corruption and bribery in a foreign country.
The businessman – known in the legal proceedings as ZXC – decided to sue Bloomberg over the article, claiming that the media outlet had misused his private information as he had not been charged with any offence in relation to the corruption inquiry.
The case hinged on how to balance the businessman’s right to privacy with Bloomberg’s right to freedom of expression. After six years of legal argument and appeals, the British court system has conclusively sided with the businessman and dismissed the media outlet’s arguments.
In the judgment written by Lord Hamblen and Lord Stephens, they said: “For some time, judges have voiced concerns as to the negative effect on an innocent person’s reputation of the publication that he or she is being investigated by the police or an organ of the state.”
They said there is a “uniform general practice” by bodies such as the police not to identify those under investigation before laying charges due to the risk of unfair damage to their reputation.
Hamblen and Stephens continued: “Reputational and other harm will ordinarily be caused to the individual by the publication of such information.
“The degree of that harm depends on the factual circumstances, but experience shows that it can be profound and irremediable.”
Wednesday’s supreme court ruling is the latest – and potentially most important – in a series of judgments which have strengthened privacy law in the UK. The ruling clearly establishes that individuals suspected of criminal wrongdoing have a reasonable expectation of privacy until charged. It also makes it harder for journalists to publish stories based on confidential documents, even if the leaked material alleges serious wrongdoing.
British media outlets – at the tabloid end of the market and in high-end financial news – increasingly find that privacy law, rather than the risk of libel, is one of the biggest barriers to publication of stories. In 2018 Cliff Richard successfully won substantial damages from the BBC after the broadcaster revealed that he was the subject of a police investigation into alleged historical sexual offences, even though no charge was ever brought and the claims were later dismissed as false. Meghan, the Duchess of Sussex, also won a privacy case against the publisher of the Mail on Sunday after it published details of her personal letter to her father.
Hanna Basha, of the law firm Payne Hicks Beach, said the British media would now be severely restricted in “how they are able to report on the early stages of the majority of criminal investigations”.
“It is a welcome decision for those suspected of crimes who are subsequently not charged as they no longer have a reputational cloud hanging over their heads simply because of the investigation. If suspects are not charged then, in the majority of cases, no one will ever find out about the investigation.”
The businessman in Wednesday’s ruling successfully argued that, under the European convention on human rights, he had a reasonable expectation that the details of the British regulator’s criminal investigation into him would not be made public unless he was charged with an offence.
Bloomberg had argued that the general public understands that reporting the existence of a criminal investigation into an individual does not mean they are necessarily guilty of a criminal offence. However, the supreme court ruled that even revealing the existence of a criminal inquiry would affect aspects of an individual’s private life such as “the right to establish and develop relationships with other people”.
Bloomberg also argued that the businessman’s work for a major company listed on the stock exchange should not be considered part of his private life and therefore should not be subject to the same legal protections. The court rejected this interpretation of the right to a private life and instead went the opposite way, concluding that an article revealing the existence of a criminal inquiry would cause “greater damage to a businessman actively involved in the affairs of a large public company” than to an ordinary member of the public.
As a result the supreme court also upheld an earlier decision to award £25,000 in damages to ZXC for misuse of his private information.
• This article was amended on 14 July 2023 to clarify that, in Bloomberg, the individual’s case for misuse of private information was he had not been charged with any offence. An earlier version referred to “not been arrested or charged”.