Privacy and Confidentiality: Expectations of Privacy in Criminal Investigations

The Supreme Court has confirmed that a person under criminal investigation will generally have a reasonable expectation of privacy in the investigation until charged.


In this case, the plaintiff worked for a publicly traded company that operated in multiple jurisdictions. The individual and his employer have been the subject of a criminal investigation by a UK law enforcement agency. As part of the criminal investigation, the UK law enforcement agency sent a letter of request to its counterpart in a foreign state. In this letter, the British law enforcement agency requested documents and information relating to the individual. The letter specified that the contents of the letter were to remain confidential.

Bloomberg obtained a copy of the letter and published an article stating that information had been requested regarding the individual and detailing the matters the individual was under investigation. The individual filed a complaint against Bloomberg for misuse of private information.

The individual’s claim was successful, with the High Court ruling that Bloomberg misused the individual’s private information. Bloomberg appealed unsuccessfully to the Court of Appeals and the Supreme Court.

The key points of the court judgments were:

  • When considering allegations of misuse of private information, courts must use a two-step test.
  • The first step is to determine whether the claimant objectively has a reasonable expectation of confidentiality of the relevant information, having regard to all the circumstances of the case, and whether that expectation is outweighed by the publisher’s right to freedom of expression.
  • This second step involves a balancing exercise by the court between the individual’s right to privacy and the publisher’s right to freedom of expression (both rights granted by the European Convention on Human Rights). ‘male).
  • The balancing exercise will always be fact specific. There may be rare circumstances where it will be appropriate for the press to publish information about a criminal investigation before an individual is charged – the court gave an example where the press alleges shortcomings in the conduct of the investigation .
  • The legitimate starting point, however, is that a person under criminal investigation has a reasonable expectation of privacy with respect to information relating to the investigation unless and until that she be formally charged.
  • The rationale for this starting point is that publication of this type of information generally damages the person’s reputation as well as multiple aspects of their physical and social identity, all of which are protected by their right to life. private.


While the case only concerns an individual’s right to privacy, employers’ reputations can also be tarnished by the publication of details of investigations into alleged wrongdoing by their employees. This decision may therefore be useful to employers, especially since it is likely to be relevant for the publication of details of regulatory and criminal investigations.

Bloomberg LP (Appellant) v ZXC (Respondent)

Mark M. Gagnon