UKSC recognizes the frailty of collective judgement and protects the privacy of investigative subjects

Earlier this week. the Supreme Court of the United Kingdom held that, as a “legitimate starting point,” persons under investigation by law enforcement have a reasonable expectation of privacy in the fact they are suspected of a crime and any expressed basis for that suspicion.

The Court affirmed an award of privacy tort damages made to a former CEO of a publicly traded company who United Kingdom authorities suspected of various financial crimes. He successfully sued Bloomberg, who had published an article with details about the investigation after Bloomberg had been leaked a copy of a letter of request that the authorities had sent to another state in furtherance of their investigation.

To sue for misuse of information in the UK one must first establish that they have a reasonable expectation of privacy in the relevant information. As in our Charter jurisprudence, the test is contextual and requires an examination of all the circumstances.

The Court said this does not preclude recognition that certain classes of information are, as a starting point, private enough to warrant protection. It held there is growing recognition of the harms faced by those suspected (but not yet charged) of crimes and made its protective finding, pointing out that some circumstances will weigh against an expectation of privacy. An arrest that follows public rioting, the Court said, would not (ordinarily) attract an expectation of privacy.

The Court said the rationale for its starting point is the potential for damage to reputation, which it tied to the right of privacy as follows:

Fifth, the rationale for such a starting point is 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 such as the right to personal development, and the right to establish and develop relationships with other human beings and the outside world all of which are protected by article 8 of the ECHR: see Niemietz v Germany (Application No 13710/88) (1992) 16 EHRR 97, para 29. The harm and damage can on occasions be irremediable and profound.

Despite linking the right of privacy to the protection of reputation, the Court nonetheless held that defamation law’s recognition that the ordinary reasonable reader is capable of distinguishing suspicion from guilt is irrelevant to the resolution of a privacy claim. Rather, it took notice of the profound impact that the publication of suspicions can have on individuals despite the criminal justice system’s presumption of innocence.

The presumption of innocence is a legal presumption applicable to criminal trials. In that context the presumption weighs heavily in the directions that a jury is given or in the self-directions that a judge sitting alone applies. However, the context here is different. In this context the question is how others, including a person’s inner circle, their business or professional associates and the general public, will react to the publication of information that that person is under criminal investigation. All the material which we have set out between paras 80-99 above now admits to only one answer, consistent with judicial experience, namely that the person’s reputation will ordinarily be adversely affected causing prejudice to personal enjoyment of the right to respect for private life such as the right to establish and develop relationships with other human beings. Accordingly, we reject the submission that a general rule or starting point is unsound because it significantly overstates the capacity of publication of the information to cause reputational and other damage to the claimant given the public’s ability and propensity to observe the presumption of innocence.

The Court did not mention the internet or the so-called “cancel culture” phenomenon, though its judgement is responsive to a very similar concern. It understands that we may shun those who are the subject of criminal suspicion while offering them a measure of protection from these “unfair” harms.

Bloomberg LP (Appellant) v ZXC (Respondent), [2022] UKSC 5.