February’s Supreme Court ruling in Bloomberg confirmed that those under criminal investigation have a right, enforceable in the civil courts, to prevent publication of their identity until the moment they are charged. In this short article Gordon Downie, Partner in our regulation and markets team, considers some questions about the implications of Bloomberg, in particular for regulatory investigations.
The Bloomberg ruling
The factual context of the case is relatively straightforward. It concerned an individual (X) who, along with his employer (Y), were the subject of a criminal investigation by a UK legal enforcement body (Z). During that investigation, Z sent a confidential letter of request to the authorities of a foreign state seeking, among other things, information and documents relating to X. Bloomberg, a well-known media company, obtained a copy of the letter, on the basis of which it published an article reporting that information had been requested in respect of X and detailing the matters in respect of which he was being investigated.
After Bloomberg refused to remove the article from its website, and following an unsuccessful application for an interim injunction, X brought a successful claim against Bloomberg for misuse of private information. X claimed that he had a reasonable expectation of privacy in relation to:
- the fact that Z had requested information relating to him in the context of its investigations; and
- the details of the matters that Z was investigating in relation to him.
In its ruling upholding X’s claim the Supreme Court confirmed that such a claim must be analysed using a two-stage test: whether the claimant objectively has a reasonable expectation of privacy in the relevant information considering all the circumstances of the case; and, if so, whether that expectation is outweighed by the publisher’s right to freedom of expression (which involves balancing the claimant’s article 8 ECHR right to privacy and the publisher’s article 10 ECHR right to freedom of expression).
Importantly, the Supreme Court held that a legitimate starting point for applying the first stage of the test is that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation. This expectation arises, at least in part, from the risk of reputational damage attaining a certain level of seriousness and causing prejudice to personal enjoyment of the right to respect for private life.
Whilst the Supreme Court acknowledged that X’s status as a businessman actively involved in the affairs of a large public company might mean that the limits of acceptable criticism of him were wider than in respect of a private individual, it held that that factor had to be balanced against the effect of publication on him. In that respect, the Court found as follows: “The ordinary conclusion in relation to the effect of publication of information that an individual is under criminal investigation is that damage occurs whatever his characteristic or status. Indeed, ordinarily we would anticipate greater damage to a businessperson actively involved in the affairs of a large public company than to a private individual” (paragraph 140).
Wider implications of Bloomberg
The Bloomberg ruling raises some interesting issues around the publication of information relating to the identity of those under investigation by public bodies. Let's look at three particular questions.
Question 1: If Z (the enforcement body) had chosen to publish details of its investigation into X and his employer, how would X’s claim have been affected?
Whilst publication of these details by Z would likely have frustrated X’s claim against Bloomberg (the reputational damage already having by then occurred), one imagines that X would have been able instead to claim damages against Z for its own misuse of X’s private information.
In that context, the Supreme Court discusses in its judgment what it describes as, “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”, and observes that this, “has now resulted in a uniform general practice by state investigatory bodies not to identify those under investigation prior to charge” (paragraph 81).
It is interesting to speculate how the courts would react if a state investigatory body chose to depart from this ‘uniform general practice’ and instead adopted a policy (assuming it was otherwise lawfully entitled to do so) of routinely publishing details of persons under investigation. In such a case, no doubt, the court would have to assess carefully the justification for such a policy and whether that might in some way outweigh the suspect’s expectation of privacy.
Question 2: If Bloomberg (or Z) had published information only concerning X’s employer and not X, would the employer have had a claim?
There appears to be no reason in principle why X’s employer – assuming that publication of information concerning a criminal investigation into its activities would cause similar harm to its reputation – could not also raise a civil claim for misuse of private information. Questions might well arise as to the application of Article 8 ECHR in the case of a legal (as opposed to natural) person, or as to whether an Article 8 infringement concerning such a person ought to be analysed differently to that involving an individual, but in principle companies, as well as individuals, do enjoy protection under Article 8.
In any event, of course, such a civil claim exists as a matter of common law rather than by virtue of the Human Rights Act and so, even if Article 8 does not strictly apply, that may not be fatal to a claim brought by a corporate body.
Question 3: How might Bloomberg apply in regulatory investigations more generally?
Clearly, the Supreme Court in Bloomberg was addressing only situations in which the investigation which is underway is one which might lead to a criminal prosecution in the formal sense. However, there are many regulatory investigations which may not involve the threat of prosecution per se, but which may nonetheless involve the potential imposition of penal sanctions. Indeed, according to ECHR case law, such regulatory proceedings may well be characterised as criminal for the purposes of the Convention, irrespective of their formal designation under domestic law.
This raises the interesting possibility that civil claims for misuse of private information may be available in the context of this much broader category of regulatory proceedings and not simply in relation to formally criminal ones. If so, such claims might arise in relation to information published prior to the equivalent of a formal criminal charge (such as issuing of a statement of objections or statement of case). To that extent, it might be necessary for regulatory bodies (such as Ofgem and Ofcom) which routinely publish details of firms under investigation (whether ‘charged’ or not) to review their practices.