The right to privacy in criminal investigations | Dechert LLP

The Supreme Court of the United Kingdom has delivered an important judgment1 which confirms that persons (including businessmen) who are the subject of a criminal investigation have a reasonable expectation of confidentiality with respect to information relating to that investigation before being charged. This is at least the starting point for determining whether there has been misuse of private information.

Facts

An individual named ZXC had been a US citizen with permission to stay in the UK since 2014. He worked for a listed company that operated overseas in several foreign countries (X Ltd) and became the general manager (but not administrator) of one of its regional divisions.

In 2016, Bloomberg published an article relating to the activities of X Ltd in a particular country for which the division of ZXC was responsible (the foreign state). These activities had been the subject of a criminal investigation into allegations of fraud, bribery and corruption since 2013 by a UK law enforcement agency (UKLEB). The article stated that ZXC had been interviewed as part of the UKLEB investigation and the information in the article was drawn almost exclusively from a confidential letter requesting mutual legal assistance sent by the UKLEB to the foreign state. The Letter of Request included a summary of the UKLEB investigation and its initial findings.

ZXC sued Bloomberg for misuse of private information in publishing the article, seeking damages and an injunction to restrain further publication of the article.

One of the questions the Supreme Court had to decide was whether a person who had not yet been charged with a criminal offense had a reasonable expectation of privacy.

decision

The Supreme Court confirmed that the existence of misuse of private information is determined by applying a two-step test. The court must consider (i) whether the plaintiff has a reasonable expectation of privacy with respect to the relevant information and, if so, (ii) whether that expectation is outweighed by the publisher’s right to freedom of speech.

A reasonable expectation of privacy

The Supreme Court found as a “legitimate starting point” that a person under criminal investigation had, prior to being charged, a reasonable expectation of privacy with respect to information about this survey. However, the actual existence of such an expectation is an objective matter that will be subject to factual inquiry, requiring an assessment of the circumstances of each case. Among these circumstances would be:

  • the attributes of the individual;
  • the nature of the activity in which the individual was engaged;
  • where it was happening;
  • the nature and purpose of the intrusion;
  • the absence of consent and whether it was known or could be inferred;
  • the effect on the individual; and
  • the circumstances under which and the purposes for which the information came into the hands of the publisher.

While the Supreme Court noted that ZXC’s status as a businessman actively involved in the affairs of a large public company meant that the limits of acceptable criticism against him were wider than at the respect to an individual, the effect of publishing information that an individual is under criminal investigation is that harm will occur, regardless of their characteristics or status.

Any reasonable expectation of privacy would cease once a person is charged with a criminal offence, the principle of open justice meaning that such information is of a public nature.

The balancing exercise

Although the Supreme Court did not have to consider this element, assuming that there is a reasonable expectation of privacy, the second step in determining whether there has been an abuse of private information involves a balances the individual’s right to privacy under Article 8 of the European Convention on Human Rights against the publisher’s right to freedom of expression under Article 10. Relevant factors when performing this balancing exercise would be:

  • what is the notoriety of the person concerned and what is the subject of the report;
  • the past conduct of the data subject;
  • the method of obtaining the information and its veracity;
  • the content, form and consequences of the publication; and
  • the seriousness of the restriction or interference and its proportionality to the exercise of freedom of expression.

The extent to which publication is in the public interest will be of paramount importance.

conclusion

The Supreme Court has reassured those whose work or business matters are under criminal investigation that at least initially they can expect information about the investigation to remain confidential before charges are not laid. His judgment shows that the English courts are aware of the irreparable damage to reputation that can be caused if an investigation is made public before its conclusion. While the ruling came in the context of a criminal investigation, it is likely that courts would take the same approach with respect to regulatory investigations more broadly.

Even so, the existence of a reasonable expectation of privacy is only a starting point; it is not a default position or a legal presumption. In each case, the English courts will make an assessment of the relevant circumstances to determine whether such an expectation actually exists and, if so, whether it outweighs the publisher’s right to free speech.

The authors thank Verity Spragge, Trainee Solicitor in London, for her valuable contribution to this OnPoint.

Endnotes:

1) Bloomberg LP vs. ZXC [2022] UK SC 5

Mark M. Gagnon