Landmark Ruling from the Supreme Court

Article by Amirah Ajaz, Partner and Tareq Munis

Privacy is an important issue which is always at the forefront of our minds when representing our clients. Many of our clients have been wrongly accused of serious fraud, bribery and corruption, money laundering or other serious crime.

Reputational damage can have severe consequences for anyone, whether you are a high-profile director of a multi-national company or a person within the local community.

Publication of a suspect’s name during the investigation stage and prior to them being charged with a criminal offence has been litigated in the court for a significant period. The battle between the media and the lawyers has never stopped – perhaps momentarily paused for now.

On the 16^th of February 2022, the Supreme Court handed down its landmark judgment in the case of Bloomberg v ZXC where it confirmed that prior to being charged, a suspect should expect to have a reasonable right to privacy, which is determined by a two stage-test.

Stage one is an objective test, asking whether the person under a criminal investigation objectively, has a reasonable expectation of privacy in the relevant investigation.

If satisfied, stage two requires that expectation to be outweighed by the publisher’s right to freedom of expression, which needs a balancing application between Article 8 and Article 10 of the ECHR.

Regarding the first stage, the judge held in this case that in fact a person in a police investigation does have a reasonable expectation of privacy up to the point of charge. For the second stage, the judge asked whether the matter of investigation is of high public interest.

In the above-mentioned case, the approach the judge took was to ask whether there was sufficient public interest in revealing information about the investigation. The public interest element would have to outweigh the reasonable expectation of privacy that ZXC should enjoy, which depends on the starting point adopted and that the confidentiality of the investigation should be maintained.

Article 8 of the ECHR carries with it a reputational measurement which is guarded by the tort of defamation, and the tort of misuse of private information as it might harm the person in question. Exercising those rights brings with it duties, responsibilities and restrictions which are required in a democratic society.

This places a burden on the media to be more cautious about reporting the details of those who have been suspected of criminal activity or arrested. With this ruling, the Supreme Court have provided some assurance to private individuals who are subject to a criminal investigation, with the court recognising reputational damage when the press report a matter.

The Judgement does not silence the press; however, it is a step in the right direction for our clients.

If you wish to discuss the contents of this article further, then contact a member of our team on 0344 587 9996.