The tort of misuse of private information
- By James Ferguson
In general, does a person under criminal investigation have, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation?
This was a question recently considered by the Supreme Court in London.
Background
The respondent/claimant, ZXC, is a US citizen with indefinite leave to remain in the UK since 2014. He was chief executive of a regional division of X Ltd, which operated in several foreign countries.
In 2016, the appellant/defendant, Bloomberg, published an article relating to X Ltd and the activities of ZXC’s division in a particular foreign state.
Those activities have been subject to an investigation in the UK since 2013. Bloomberg reported a focus on allegations of fraud, bribery, and corruption at that time.
The investigation is ongoing. To date, no employees of X Ltd have been charged with any offence.
In 2016, Bloomberg published an article naming ZXC as having been interviewed by UK authorities as a part of the investigation. The likely source was a confidential letter sent by the UK authority to the foreign state under the UN Convention against Corruption.
ZXC sought damages for misuse of private information and was awarded £25,000 by the High Court in April 2019. Bloomberg's appeal was dismissed in May 2020. They further appealed to the Supreme Court.
Judgment
The distinct tort of misuse of private information was defined by the House of Lords in Naomi Campbell’s case against Mirror Group (2004). There is a balancing exercise between the right to privacy and the right to freedom of expression.
Working on this premise, the Supreme Court held that:
…a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation and that in all the circumstances this is a case in which that applies…
The appeal was dismissed.
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