ZXC v Bloomberg LP

Reference: [2020] EWCA Civ 611

Court: Court of Appeal

Judge: Lord Justice Underhill; Lord Justice Bean; Lord Justice Simon

Date of judgment: 15 May 2020

Summary: Misuse of Private Information – Breach of Confidence – Data Protection Act 1998 – Article 8 – Article 10 – criminal investigations – letter of request – journalism

Download: Download this judgment

Appearances: Clara Hamer (Appellant) 

Instructing Solicitors: Reynolds Porter Chamberlain LLP


The Claimant (“C”) was the chief executive of a division of “X Ltd”, a major international business. The Defendant, Bloomberg, is an international financial software, data and media organisation based in New York, well-known for its financial journalism and reporting.

A UK law-enforcement body (“UKLEB”) began a criminal investigation into X Ltd, investigating possible offences of corruption, bribery, offences under the Proceeds of Crime Act 2002 and the Fraud Act 2006, together with conspiracy to commit offences. The UKLEB sent a formal letter of request (“LoR”) to a foreign government seeking its assistance in the investigation. The LoR, which was stated on its face to be confidential, identified C as a suspect. The LoR also set out the evidence the UKLEB had so far obtained, together with its initial conclusions.

Bloomberg had previously published an article which explained that C had been interviewed by the UKLEB as part of its investigation. Although highly displeased at its publication, C had not taken any legal action over this article. Instead, acting through his solicitor, C had provided a comment for publication. The trial Judge described this as being an understandable media strategy in the circumstances.

Bloomberg obtained a copy of the LoR and published an article based largely on its contents, at a time when C had not been charged with any offence. This was the article complained of. C brought a claim for misuse of private information, breach of confidence and breach of the Data Protection Act 1998.

The information in the article which was complained of (“the Information”) is set out at paragraph 28 of the judgment of the Court of Appeal. In essence, C complained about (1) publication of the fact that in its investigations into C the UKLEB had asked the foreign state to provide certain banking and business records, and (2) publication of details of the matters that were being investigated. This included a complaint that Bloomberg had published that the UKLEB considered that C had given false information to the board of X Ltd as part of a potential conspiracy, that the UKLEB believed C had committed fraud by false representation, and that the UKLEB was seeking to trace money which it believed was the proceeds of crime carried out by C.

Bloomberg denied that C had a reasonable expectation of privacy in respect of the Information such as to engage his rights under Article 8 ECHR, and argued that any privacy interests that C could demonstrate were outweighed by Bloomberg’s Article 10 rights of freedom of expression.

Following a four-day trial, in April 2019 Mr Justice Nicklin upheld C’s claim for misuse of private information and awarded him £25,000 in damages. C had not pursued his claims for breach of confidence or breach of the Data Protection Act 1998; C accepted that, if he could not succeed with his claim for misuse of private information, he would not succeed in his breach of confidence claim and that similar considerations applied to the Data Protection Act claim.

Bloomberg appealed to the Court of Appeal.


The issue was whether the trial Judge had erred in upholding C’s claim for misuse of private information. Specifically, whether the trial Judge had been right to find that C had a reasonable expectation of privacy in the Information such that C’s rights under Article 8 were engaged, and that these outweighed Bloomberg’s right to freedom of expression under Article 10.


Bloomberg’s appeal was dismissed. The Court of Appeal’s reasoning included the following.

Building on the decision of Mr Justice Mann in Sir Cliff Richard v BBC [2019] Ch 169, Simon LJ, giving the lead judgment of the Court, found that “those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion.” [82].

The Court added that “the reasonable expectation of privacy is not in general dependant on the type of crime being investigated or the public characteristics of the suspect (for example, engagement in politics or business) … I see no good reason why suspicion relating to a crime concerning business dealings should be an exception to a salutary general approach which is founded on the preliminary stage of a state enforcement agency enquiry into what may or may not lead to a charge. To be suspected of a crime is damaging whatever the nature of the crime: it is sensitive personal information and there can be little justification for a hierarchy of offences giving rise to suspicion; although I would accept that there may be some cases where the reasonable expectation of privacy may be significantly reduced, perhaps even to extinction, due to the public nature of the activity under consideration (rioting, for example, or electoral fraud)” [84].

Bloomberg had argued that the trial Judge had wrongly conflated private information with confidential information and wrongly concluded that the confidential nature of the LoR supported the privacy right being asserted in respect of its contents. But the Court of Appeal held that the Judge had been entitled to place reliance on the highly confidential nature of the LoR in finding that the Information was private: this showed “the provisional nature of the UKLEB’s suspicion and consequently the reasonable expectation of privacy in relation to the Information” ([87]) and was part of “the circumstances in which and the purposes for which the information came into the hands of the publisher” [92].

Bloomberg had also contended that the Judge had drawn an artificial distinction between on the one hand information about C’s alleged criminal conduct (which the Judge had found was likely not something C could legitimately expect to keep private), and on the other hand UKLEB’s suspicions about that conduct (which he found was C’s private information). However the Court of Appeal held that the Judge was correct to distinguish in privacy terms between a report about alleged criminal conduct and a report about a criminal investigation into that individual and preliminary conclusions: “The latter may include the former; but it also conveys that the investigating authority regards the allegations as serious enough to warrant investigation and had drawn preliminary conclusions to the disfavour of the Claimant”. The Judge had been “well aware that the Claimant did not complain about the media’s interest in and reporting of allegations about X Ltd’s involvement in corruption in the Foreign State” [96].

Regarding the balance of privacy expectation against freedom of expression, Bloomberg had argued that the Judge had wrongly found that the “high public interest” he had identified in information about the alleged corruption had only an indirect bearing on this case. The Judge had taken this approach because the article had not presented the fruits of Bloomberg’s independent investigation into the alleged corruption but had simply reported information about the UKLEB’s investigation drawn from the LoR. However the Court of Appeal upheld the Judge’s approach: “[the Judge] had rightly identified that the public interest in publication about the problems of corruption in the Foreign State was not directly relevant to the specific question he had to address, namely: whether there was a public interest in publishing information about the contents and provisional results of the UKLEB investigation” [126]. At [150], Lord Justice Underhill stated, “I accept that in the circumstances of a particular case the undoubted legitimacy of publishing allegations of misconduct may mean either that a person under criminal investigation for involvement in the misconduct has no reasonable expectation of privacy in that fact or that that expectation is outweighed by the article 10 rights of the publisher. But it does not follow that the distinction itself is unreal or that it can simply be disregarded in every case. For the reasons given by Simon LJ at para. 96, information that an individual is the subject of a formal criminal investigation is genuinely of a different character from allegations about the conduct being investigated. The question for the Judge was whether the distinction should operate on the facts of this case. I see no error in his conclusion that it should”.

The Judge had not taken an overly narrow view of those matters which it would have been in the public interest to publish. “A recognised public interest in alleged corruption in the Foreign State did not confer a wide authority to report on the contents of the LoR, in which there was not a sufficient public interest to justify publication. The Judge gave an instance of what the media might legitimately be expected to highlight: ‘for example, any perceived inadequacies in the investigation.’ This was plainly not intended to be exhaustive of legitimate media concerns. The difficulty with this argument remains the fact that Bloomberg had done little, if anything, more than publish the Information in the highly confidential LoR” [130]-[131].

The Judge had not found that ‘the starting point’ when balancing Articles 8 and 10 was ‘the confidential nature and content of the LoR’; “The Judge said that ‘the starting point’ was that ‘there was a very clear public interest that the contents of the LoR should not be published and the confidentiality of the UKLEB’s investigations should be maintained’. Although there was no claim for breach of confidence, there was a substantial and clearly identified public interest in maintaining the confidentiality of the LoR and its Information. The fact that the UKLEB had not advanced a claim in respect of the LoR was material, but so was its attitude to Bloomberg’s publication of its contents, as it belatedly emerged” [133]-[134].


This is a very significant judgment as it is the first time since the landmark High Court case of Sir Cliff Richard v BBC [2019] Ch 169 that the Court of Appeal has considered the privacy rights of suspects in criminal investigations who have not been charged. The statement of Lord Justice Simon (with whom Lord Justice Bean and Lord Justice Underhill agreed) at paragraphs [82]-[84] that “those who have simply come under suspicion by an organ of the state have, in  general,  a  reasonable  and  objectively  founded  expectation  of  privacy  in relation  to  that  fact  and  an  expressed  basis  for  that  suspicion”, and that this “is not in general dependant on the type of crime being investigated or the public characteristics of the suspect (for example, engagement in politics or business)”, is likely to have very significant ramifications for the media reporting of criminal investigations.

While the Court stated that “there can be little justification for a hierarchy of offences”, at the same time it accepted that there may be other cases where “the public nature of the activity under investigation” or “the undoubted legitimacy of publishing allegations of misconduct” mean either that the individual’s Article 8 privacy rights are not engaged, or that they are outweighed by freedom of expression rights under Article 10 ([84] per Simon LJ; [150] per Underhill LJ). In this case the allegations being investigated concerned the business dealings of a large international company and (as found by the trial Judge) were matters of “high public interest”, but the case was nevertheless found to fall on the privacy side of the line. The decision has provoked concern among media organisations.

Practitioners will also note that a key reason why the Court found that suspects’ Article 8 rights will generally be engaged is that publication of such information may be damaging to their reputation and “the law should recognise the human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty” ([82] per Simon LJ). This approach is noteworthy because the Claimant in this case had not brought a claim for libel and the trial Judge had held that in such circumstances the damages awarded could not include a sum purely for injury to reputation. Future cases may need to grapple further with the interplay between the torts of defamation and misuse of private information, but in the meantime it seems likely that individuals who are under investigation for alleged criminal offences but have not been charged will continue to seek to use the tort of privacy as an alternative route of reputation management.