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This LedEx article aims to explain the decision made in the Bloomberg LP v ZXC case: the facts of the claim, the issues addressed, and the decision’s implications.

Introduction

The case of Bloomberg LP v ZXC [2022] is an important legal decision in the UK concerning our right to privacy. The central issue in the case was whether individuals under criminal investigation who have not yet been charged with any offence can reasonably expect privacy. This ruling put forward that such individuals generally do have this right to privacy.

The Right to Privacy

Our right to privacy is enshrined in Article 8 of the European Convention on Human Rights (ECHR), which is incorporated into UK law through the Human Rights Act 1998. Article 8 protects an individual's private life, family life, home, and correspondence. An example of this right in practice is the case of Marckx v Belgium, where the European Court of Human Rights found that Belgian law wrongfully discriminated against children born out of wedlock, violating the family life aspect of Article 8.

This right is crucial because it ensures protection from unnecessary intrusion into personal matters by the state or other parties, safeguarding individual dignity, autonomy, and family relationships. It also acts as a safeguard against disproportionate interference in personal life, reinforcing the balance between privacy and the public interest in a democratic society.

The Facts

The two parties involved in this case were Bloomberg LP, the appellant, and ZXC, the respondent. ZXC argued that individuals under investigation who have not been charged with an offence should have a reasonable expectation of privacy.

This dispute arose as a result of Bloomberg — a data and media organisation — publishing an article in 2016, relating to details of a criminal investigation by a UK Law Enforcement body (“UKLEB”). This investigation was against a UK Company, labelled X Ltd. Bloomberg reported the facts of this investigation in two articles, including the real company name.

The second article was based on a confidential document produced by UKLEB, which identified the respondent ZXC, who held a senior position at X Ltd, as being under investigation, and having been interviewed. Noted in this article was that the investigation concerned a number of possible offences, including bribery and corruption.

The Issues Addressed

The issue at the centre of this case was whether, and to what extent, a person who has not been charged with an offence can have a reasonable expectation of privacy in relation to information that relates to a criminal investigation into his activities.

Nine days after the publication of the second article, ZXC asked Bloomberg to take it down. Bloomberg declined, and so ZXC issued an application to the court for an order for this article to be taken down (an ‘interim injunction’).

ZXC’s basis for this application was that the publication of the article amounted to a ‘misuse of his private information’ (i.e. the publication of his private information, including his name).

This application by ZXC was dismissed. This dismissal was on the basis that Bloomberg’s ‘right to freedom of expression’ outweighed ZXC’s ‘right to private life’ in these circumstances. In these scenarios with conflicting rights, the rights are to be weighed against each other to make a decision.

After this, ZXC pursued a claim for damages, and a final injunction to the court in 2018 regarding this publication he believed was against his private life right.

Image: by **Lianhao Qu** via **Unsplash**

What did the Court decide

The Supreme Court dismissed this appeal by Bloomberg, agreeing with the original decision in 2019 that, as a starting point, a person under criminal investigation has a reasonable expectation of privacy in respect of information relating to that investigation before they are charged with any offences.

A large factor in this decision was the recognition that such private information would undeniably adversely affect a person’s reputation, therefore hindering their right to respect for a private life. An example of this given was the ability for said person to establish and develop relationships with people with their private information being available.

Implications

The decision provides confirmation that, as a starting point, individuals under investigation have a reasonable expectation of privacy.

Where an investigation has been publicised, significant reputational and professional damage is largely definite. This is particularly problematic if the individual under investigation then goes onto not be charged, as they will have this repetitional damage nonetheless.

This is not a qualified right, meaning a right which is definite, as the court was clear that individuals under criminal investigation cannot have an unqualified expectation of privacy. It was said that as noted earlier, a balancing exercise is to be conducted, which weighs an individual’s right to private life against a publisher’s right to freedom of expression. Such decisions ultimately turn on the specific facts of a case.

Conclusion

In conclusion, the Bloomberg LP v ZXC case reinforces that individuals under criminal investigation, but not yet charged, generally have a reasonable expectation of privacy. However, this right is not absolute and must be balanced against the public’s right to freedom of expression, depending on the case's specific circumstances.

Written by Anais Gunn

Glossary Box

Interim injunction - a temporary court order that requires a party to do or not do something until a final decision is made in a legal case.

Qualified right - a right that can be limited in certain circumstances to balance the needs of the individual with the needs of the community or other people

Leducate Explains: The Bloomberg LP v ZXC decision