The Supreme Court has upheld the decisions of the Court of Appeal and Mr Justice Nicklin that an article about a fraud, bribery and corruption investigation into the Claimant, at a time when he had not been charged with any offence, amounted to a misuse of his private information. The decision is likely to have significant ramifications for the media reporting of criminal investigations before the suspect has been charged.
Some of the published information derived from a Letter of Request for mutual legal assistance sent to a foreign state as part of an investigation by a UK law-enforcement body (“UKLEB”). Bloomberg had sought to challenge, amongst other things, the Judge’s findings that generally, prior to charge, a person under criminal investigation has a reasonable expectation of privacy in information relating to the investigation engaging their rights under Article 8 ECHR, and that the high public interest in publishing information about the alleged corruption which was the subject-matter of the criminal investigation had only an indirect bearing when evaluating the Article 10 ECHR freedom of expression rights of the publisher in this case.
The Supreme Court (Lord Reed, Lord Lloyd-Jones, Lord Sales, Lord Hamblen and Lord Stephens) dismissed Bloomberg’s appeal. The Court upheld a “general rule or legitimate starting point” that “once it is established that the relevant information was that a person, prior to being charged, was under criminal investigation then the correct approach is for a court to start with the proposition that there will be a reasonable expectation of privacy in respect of such information and thereafter consider by reference to all the circumstances of the case whether the reasonable expectation either does not arise at all or was significantly reduced” [70]. The Court added that information relating to a criminal investigation “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] and “the private nature of that information is not affected by the specifics of the activities being investigated” [131].
The Court also rejected the argument that the Court of Appeal and Nicklin J had focussed unduly on the confidential nature of the Letter of Request when evaluating the claim for misuse of private information. The Court held that “if information is confidential that is likely to support the reasonableness of an expectation of privacy” [150] and the judge was right to place reliance on the public interest in the observance of duties of confidence when carrying out the balancing exercise between Articles 8 and 10 [152]-[154].
Bloomberg was represented in the Supreme Court by 5RB’s Clara Hamer (led by Antony White QC), instructed by Reynolds Porter Chamberlain LLP.
The judgment of the Supreme Court, which was handed down on 16 February 2022, is available here. A press summary is available here.
The judgment of the Court of Appeal is available here, and the judgment of Mr Justice Nicklin is available here.