The Supreme Court has handed down judgment in Bloomberg v ZXC  UKSC 5, a significant decision on reasonable expectations of privacy in the context of criminal investigations. Their unanimous decision was that ‘as a legitimate starting point, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.’ On that basis, ‘stage 1’ of the established two stage test for misuse of private information (MPI) was met in this case.
They reached that conclusion based on the application of the stage 1 factors set out in Murray v Express Newspapers  EWCA Civ 446, and by reference to the rationale for withholding information about a person under investigation – namely, that publication of such information ‘ordinarily causes damage to the person’s reputation together with harm to multiple aspects of the person’s physical and social identity…The harm and damage can on occasions be irremediable and profound.’
This outcome should come as no real surprise or change: it was the basis for Mann J’s decision in Richard v BBC in 2018, and there are a number of other similar first instance decisions.
Given some of the reaction to this judgment, it is useful to consider what it did not decide. The Court was clear that this is only a starting point, not a legal rule or presumption. Each case will turn on its facts. In some cases, a reasonable expectation of privacy either will not arise at all (in which case, the information is not private), or will be reduced (in which case, the lower degree of privacy will be taken into account in the stage 2 balancing test). In other cases, at stage 2 the public interest in publication or (in a media context) the publisher’s Article 10 rights will outweigh any reasonable expectation of privacy that arises. Moreover, the Court was careful to emphasise that where a publisher wished to publish information as to the results of its own investigations, rather than simply re-package information from a law enforcement agency, this would be a ‘distinct and separate situation’. As such, criticisms of this decision as representing overreach or limiting the media’s freedoms appear misplaced: the decision re-states the pre-existing position, and makes clear that it is not a one-size-fits-all analysis. So far, so orthodox.
There is though another significant point in this judgment. First, not only was the Court willing to treat damage to reputation as a potentially relevant stage 1 factor, but it also expressly rejected, in this context, some of the limitations associated with protection of reputation in the tort of defamation: for example, refusing to read across defamation’s ‘hypothetical reader’. In the context of MPI, publication of information about official suspicion may, factually, cause some people to perceive the claimant as guilty.
Second, the Supreme Court expressed reservations about the approach to damages adopted in this case and in Sicri v Associated Newspapers  EWHC 3541 (QB). In both cases, the first instance judges held that damages in MPI claims cannot ordinarily include elements for damage to reputation. Damages for reputational harm should be limited to claims such as defamation where the truth or falsity of the underlying information is in issue (which may include data protection claims based on the processing of inaccurate personal data, as in Aven v Orbis Business Intelligence Ltd  EWHC 1812 (QB)).
The Supreme Court said it had ‘reservations about the extent to which quantification of damages for the tort of misuse of private information should be affected by the approach adopted in cases of defamation’ and that ‘the applicable principles as to damages formulated in this case and Sicri may merit consideration in a case in which the issues arise for determination.’ That is a wide-open door, with the Supreme Court hinting that damages for reputational harm could be recoverable in MPI, potentially regardless of whether the information in question is true or false. That decision – far more than this one – would represent a very significant expansion of the tort’s scope, taking it far from its origins as an offshoot of breach of confidence claims and instead setting it up as a clear rival to defamation. Unlike this decision, that really would be a significant development.
A monthly data protection bulletin from the barristers at 5 Essex Chambers