For once, the latest privacy case heard in the High Court didn’t involve the sexual shenanigans of a celebrity, but the facts surrounding a criminal investigation into possible financial crime.
The publisher, Associated Newspapers, wished to publish an article on the police investigation into allegations of financial crime by Company A. As part of the investigation the claimant, the owner of Company A, had been interviewed under caution.
The Mail on Sunday stated that it did not intend to publish the fact that the businessman had been interviewed under caution, but would instead focus on the investigation into Company A. It intended to make clear, it said, that no person had yet been charged with any offence and that no person employed by the company had been arrested.
The claimant, whose personal role in the company had been emphasised in previous reporting, feared that any article on the investigation into the company would convey the impression that he was also under investigation. Unsatisfied with the assurances given by the paper, he applied to the High Court for an injunction.
In a somewhat surprising admission that must have been linked to the precise facts, Associated Newspapers conceded that the fact that the claimant had been interviewed under caution did engage his privacy rights under Article 8 of the European Convention on Human Rights. The court agreed and going on to conduct the balancing exercise between Article 8 (privacy) and Article 10 (freedom of expression), granted the injunction.
The case wasn’t all bad news, with the court acknowledging the important role of the press in the investigation of crime. For this reason, the injunction was to be worded so as to allow the Mail on Sunday to continue its own investigation into the alleged crimes.
Nevertheless, the case joins a growing trend of reliance on privacy law to prevent publication of an individual’s involvement, however innocent the capacity, in criminal investigations. While traditionally publishers might only have had to worry about defamation (getting the facts right) and contempt (not prejudicing the trial), they may now also have to consider privacy before publishing the story.
To navigate this new challenge there are some helpful principles emerging from the courts:
- The fact of arrest itself may not necessarily engage a reasonable expectation of privacy. The circumstances of the arrest, including whether it took place in public, will be a significant factor.
- Where an individual asserts that their right of privacy is engaged, publishers will need a public interest argument on their side. For example, where misleading information has been issued by the subject that should be corrected.
- Concerns around the health of an individual or the possible distress caused to their children may sway the balance in favour of privacy. Similarly, an investigation of particularly sensitive crimes such as sexual offences will attract a higher degree of protection.
- The right of the press to report what has been said in open court should prevail (to be considered further in a case going to the Supreme Court in January).
- Where an individual’s reputation is synonymous with that of a company, reports on investigations into the company must avoid implying any guilt or knowledge on the part of the owner.
- Once someone has been arrested you are then of course into the contempt regime and new considerations apply.
As always when privacy law is in play, each case must be reviewed on a case by case basis.