black person holding anonymous mask in hand

The UK Supreme Court has granted permission to appeal in the case of Bloomberg LP (Appellant) v ZXC (Respondent) (2020) on the question as to:

whether, and to what extent, a person in who has not been charged with an offence can have a reasonable expectation of privacy concerning information that relates to a criminal investigation into his activities.

Background

In May 2020, the Court of Appeal required the media company, Bloomberg, to remove articles identifying an individual subject to a criminal investigation, known only as “ZXC” for the purposes of the proceedings, on the basis that s/he has a “reasonable expectation of privacy up to the point of charge”.

That decision was reminiscent of Richard v. The British Broadcasting Corporation & The Chief Constable of South Yorkshire Police (2018) where the High Court gave judgment for the Claimant who:

…had privacy rights in respect of the police investigation and that the BBC infringed those rights without a legal justification. It did so in a serious way and also in a somewhat sensationalist way.

Balancing conflicting rights

The UK is a signatory to the European Convention on Human Rights (ECHR) which was incorporated into domestic law through the Human Rights Act 1998. As an aside, a useful guide was published by a little-known Barrister some 22 years ago. 

Article 8 ECHR provides:

Right to respect for private and family life 

1.         Everyone has the right to respect for his private and family life, his home and his correspondence. 

2.         There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

This must be balanced with Article 10:

Freedom of expression 

1.         Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 

2.         The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary

Watch this space

The question of balancing ZXC’s reasonable expectation of privacy with Bloomberg’s freedom of expression will finally be answered by the UK Supreme Court in due course. Watch this space…

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By Paul Sullivan FRSA

Creating unique, engaging content for your law firm clients