Last week, in one of the most important rulings for media law for years, the Supreme Court delivered its judgment in ZXC V. Bloomberg. This decision built on the landmark privacy ruling in Cliff Richard’s case against the BBC, and it confirms the principle that in criminal investigations, suspects who have been arrested have a reasonable expectation of privacy up until the point of charge.
ZXC has been widely, and correctly, reported as having a significant bearing not only on the way that criminal investigations are reported, but it will also have a significant effect on the development of privacy law more generally.
Bloomberg’s grounds of appeal were multi-faceted. Firstly, it sought to challenge the findings of the first instance and appeal courts, that there exists a general rule that individuals have a reasonable expectation of privacy in relation to their involvement in criminal investigations up until the point of charge. Secondly, it also challenged the outcome of the balancing exercise that was carried out between the competing rights of privacy and freedom of expression which, in the lower Courts, had come out in favour of the Claimant.
In dismissing the appeal, and confirming the principles set out in the Court of Appeal, Lords Hamblen and Stephens (with whom Lords Reed, Lloyd-Jones, and Sales agreed) said that:
“…once it is established that the relevant information was that a person, prior to being charged, was under criminal investigation then the correct approach is for a court to start with the proposition that there will be a reasonable expectation of privacy in respect of such information and thereafter consider by reference to all the circumstances of the case whether the reasonable expectation either does not arise at all or was significantly reduced.”
Accordingly, in most cases, the starting point is that a person under criminal investigation has a reasonable expectation of privacy in connection with information relating to that investigation, unless it is displaced by the facts of the case.
In practical terms, nothing has changed on this issue. Journalists have been working within the constraints of this principle since the High Court judgment in Richard v. BBC in 2018. However, what is now absolutely clear is that this is now settled law, and will remain so unless and until Parliament moves to reverse it.
Add to this the fact that once an individual has been arrested, let alone charged, criminal proceedings are “active” for the purposes of contempt. Accordingly, the well known “strict liability rule” simultaneously applies, preventing the publication of anything which creates a substantial risk of serious prejudice to the administration of justice. This all compounds into an extended inhibition over the criminal process from the very outset.
However, despite this gloomy news, it is worth remembering that the right to privacy is not absolute. The Supreme Court Justices emphasised that anyone seeking to bring a privacy claim on this basis still has to meet the requirements of the well known two-stage test.
Test 1 – Does the arrested person have a reasonable expectation of privacy? As the Justices said: it depends. Or to be a little more precise, what Lords Hamblen and Stephens actually said was:
“the determination as to whether there is a reasonable expectation of privacy in the relevant information is a fact-specific enquiry”.
The Court also ruled that “whether there is a reasonable expectation of privacy is an objective question”.
Test 2- If the answer to test 1. Is ‘yes’, does the public interest override that reasonable expectation?
These are requirements which will not always be easy for claimants to satisfy.
But equally, this is not an easy process for working journalists. We already know that it is not enough simply to assert that there was a public interest in publishing the private information. You only have to look at recent cases such as Sicri v Associated Newspapers to see that the bar is high, and that clear and unequivocal evidence is required to prove that there is indeed a public interest in publishing the information in question.
So what of the future? The implications of the Supreme Court’s judgment are still being thought through, but it is immediately clear that there are a few issues which should be causing concern to journalists (and their lawyers) on a day to day basis.
First, after saying that for some time, “judges have voiced concerns as to the negative effect on an innocent person’s reputation of the publication that he or she is being investigated by the police or an organ of the state”; and after reviewing what has been said on this issue by the Leveson Inquiry
Report, the College of Policing, the Metropolitan Police Service, the Independent Office of Police Conduct, the Director of Public Prosecutions, the Home Affairs Select Committee and the Government, Lords Hamblen and Stephens said this:
“Several themes emerge from the material articulating those concerns. First, the growing recognition that as a matter of public policy the identity of those arrested or suspected of a crime should not be revealed to the public has now resulted in a uniform general practice by state investigatory bodies not to identify those under investigation prior to charge”.
So, the reasonable expectation of privacy is not limited to those being investigated by the police. It extends to other “state investigatory bodies” which have been granted the right to prosecute.
Question: when the RSPCA is exercising its investigative and prosecution powers, does this mean those being investigated also have a reasonable expectation of privacy? Even though the RSPCA is a charity and not a state investigatory body, and even though it has no powers of arrest, it would seem the answer is ‘yes’. After all, the right to prosecute is an exercise of the judicial power of the state.
Second, the Supreme Court’s judgment has blurred the line between the principles of privacy and defamation. In one single, complex, paragraph of the judgment, the Justices state that the right to privacy contained in Article 8 of the European Convention for Human Rights “encompasses a reputational dimension”; and that “information may be characterised as private because it is reputationally damaging provided it attains certain level of seriousness and consequently impacts on the personal enjoyment of the right to respect for private life”.
Privacy is the new libel, it seems. Stand by for many more privacy claims.
Third, the judgment in ZXC is just the latest in a series of cases which have preferred the protection of privacy rights at the expense of media freedom.
Fourth, it’s conceivable that the effect of this judgment may actually be limited, because as well known, the current government is not a fan of the Human Rights Act. According to an article in The Times:
“A senior government source voiced anxiety about ‘creeping judgments’, saying:
“There’s a lot of concern about protections offered to bad guys who want to be shielded from public scrutiny” and “The Ministry of Justice has not commented but pointed out that it was addressing concerns over curbs on press freedom through its reform of the Human Rights Act”.
All things considered, the decision in ZXC is a retrograde step for freedom of expression. Some of its consequences are already clear, but as time passes, more will become apparent.
The message for journalists and editors, is clear: continue to be careful, be accurate, and be thoughtful.