A suspect’s right to privacy during criminal investigations

Suspects involved in criminal investigations currently have the right to privacy regarding personal information and details relating to the investigation and from any period prior to being charged with an offence. A High Court ruling in April 2019 brought this into law.

Earlier this year, an appeal of the decision was dismissed when the Court of Appeal opted to agree with the High Court’s original ruling. The appeal came as part of a case involving a businessman under investigation for alleged financial crimes.

The case: ZXC v Bloomberg LP 2020

The businessman, referred to during the case as ZXC, was under criminal investigation for his alleged role in allegations of corruption, bribery, fraud and conspiracy offences. In 2016, the news website Bloomberg had published an article identifying ZXC as being one of the individuals involved in the ongoing investigation.

Bloomberg’s publication also contained details taken from a highly confidential letter which gave rise to ZXC’s claim that the website had misused his private information and breached his privacy rights.

Bloomberg refused to remove the article from its website at ZXC’s request therefore the businessman applied for an injunction against the publication of the article. When the requested injunction was not granted, the matter went to trial in 2018.

The judge at first instance found in favour of ZXC, finding that Bloomberg’s identification of ZXC as a suspect in an ongoing criminal investigation before he was charged did amount to the misuse of his private information. ZXC was granted an injunction against Bloomberg’s publication and was also awarded £25,000 in damages.

Appealing the decision

When this case reached the Court of Appeal this year, the court considered the following questions in relation to ZXC’s privacy rights and those of Bloomberg as an online news publication. They discussed:

1. Did ZXC have a reasonable expectation of privacy under Article 8 (right to respect for private and family life) with regard to the published information?
2. If so, did Bloomberg’s right under Article 10 (right to freedom of expression) outweigh ZXC’s Article 8 right?

The findings

The judgment drew a distinction between the reporting of ZXC’s alleged criminal conduct and Bloomberg’s reporting of him being allegedly involved in the ongoing criminal investigation.

Reporting that a criminal investigation is ongoing against an individual may be seen to validate mere allegations by suggesting that these allegations are serious enough to warrant a criminal investigation. Furthermore, a separate concern was Bloomberg’s decision to publish details taken from a letter that was not in the public domain and that had been clearly and expressly marked in bold lettering as “confidential”. ZXC therefore did have a reasonable expectation of privacy surrounding the reporting of him being under an ongoing criminal investigation.

The second question involved balancing the competing rights to privacy and freedom of press. It was decided that Bloomberg had to show that there was sufficient public interest in publishing information derived from the confidential letter. Any public interest reasons raised, must then outweigh ZXC’s reasonable expectation of privacy.

The Court of Appeal decided that there were no sufficient public interest reasons to justify Bloomberg’s identification of ZXC nor to publish details from the confidential letter. The judgment considered that information published in the article may interfere with the ongoing investigation which was at that point still in its early stages. Furthermore, Bloomberg was bound to observe the confidential nature of the letter’s contents as it was unable to show how it obtained access to the letter.

• The Court’s judgement emphasised the importance of a suspect’s privacy because of the human tendency to assume the worst and that it is a fundamental legal principle that anyone accused of an offence are innocent until proven guilty, rather than be subjected to a trial by media.
• The judgement also decided that all the right to privacy should apply to all crimes, not just the most serious. In many cases, being accused of a crime is damaging enough for most individuals, without further personal information being published in the public sphere by the media.

This important ruling provides clarity on the privacy rights of suspects who find themselves subject to a criminal investigation which may be ongoing for months or even years before charges, if any, are brought.

Since this judgment, Bloomberg has applied for permission to appeal to the Supreme Court and this decision is currently pending.