This month, in ZXC v Bloomberg LP EWCA Civ 611, the English Court of Appeal confirmed the principle that persons subject to investigation by a law enforcement body are entitled to a reasonable expectation of privacy, unless and until they are charged with an offence.
In this case Bloomberg appealed the earlier High Court decision which held it had breached the claimant’s privacy rights in publishing confidential details contained in a Letter of Request (“LOR”) seeking mutual legal assistance from foreign state. LORs are recognised as highly confidential and formal documents allowing states to cooperate in investigating or prosecuting criminal offences in accordance with the United Nations Convention against Corruption.
In this case, the UK legal enforcement body (“UKLEB“) carrying out the investigation sought mutual legal assistance in relation to the affairs of the claimant’s employer in a foreign state and requested information on the claimant. The LOR was clearly marked confidential and requested that no individual be made aware of the details of the investigation nor the information sought on particular individuals to avoid prejudicing the investigation.
The UKLEB and the claimant became aware that the Defendant intended to publish the LOR. Both parties wrote to the defendant reiterating the confidentiality of the LOR and the serious risk that publishing it could prejudice the ongoing investigation. Despite this, Bloomberg proceeded to publish an article which relied heavily on the contents of the LOR.
The High Court awarded both damages and an injunction restraining the defendant from publishing information which further identified the claimant as the subject of a criminal investigation.
Appeal Decision Confirms
The principal questions put forward in the appeal related to the judge’s finding in law, the grant of the injunction and to what extend a person could have a reasonable expectation of privacy where the such information relates to a criminal investigation into his activities. The Court of Appeal applied the two-stage test to assess whether the misuse of private information was at issue:
- Is there a reasonable expectation of privacy?
- Do the claimant’s privacy rights outweigh the defendant’s freedom of expression rights?
The Court upheld the High Court judgment and found the claimant did have a reasonable expectation of privacy in relation to the investigation, unless and until they are charged. However, this expectation was not absolute and could be eroded in if the public interested so dictated and therefore the first part of the test must be decided on the facts of each case.
In balancing the rights, the Court noted that while the parties to, and subject of, the investigation was in the public interest, there was a strong public interest in maintaining the confidentiality of UKLEB’s investigations. The defendant had not treated the LOR as a highly confidential document. The Court further noted the defendant was not prevented from reporting on the allegations of corruption of a foreign state contained in the LOR nor investigating the issues itself.
What is the Position in Ireland?
In Ireland, the right to privacy is protected under the Constitution, however it is not an absolute right; the exigencies of the common good may outweigh privacy rights. In such circumstances, the courts will engage in a balancing exercise against competing rights to determine the level of privacy which should be afforded. In addition, the Constitution and the Defamation Act 2009 also protect the right to a good name which protects an individual’s reputation. On that basis the position in Ireland is that those subject to criminal investigation are not named publicly unless charged. The media may report on the issues, but the position is that naming the accused does not contribute to the public understanding of the issues.
There have been numerous cases which illustrate the balancing exercise the courts will complete when deciding between privacy rights and freedom of expression in relation to investigations. Some relevant examples which illustrate the approach are:
- Public Interest in broadcast
Cogley v Radio Teilifís Éireann 4 IR 79, where an injunction was sought to prevent the broadcast of an undercover report which filmed inside a nursing home. The injunction was refused on the grounds of significant public interest and the public disclosure of private information was allowed. Whilst the Court did not assess any infringement of the nursing home residents in detail, it held that any resulting violations of their privacy rights could be dealt with by way of damages after the broadcast.
- Should a Tribunal hold a hearing in private?
When assessing the extent an inquiry can infringe an individual’s privacy rights, the Supreme Court, in Redmond v Flood 3 IR 79, held that any such encroachment into the applicant’s privacy rights must be only for the proper conduct of the Tribunal and the Tribunal was not obliged to hold a private inquiry before proceeding with its public inquiry.
- Release of information
In Desmond v Glackin (No. 2) 3 IR 67 the applicant claimed a right to privacy and sought to exclude an investigator from obtaining and using information from the Central Bank related to him. Based on the facts of the case, the Court held the public interest in the justified the release of the information.
As in the UK, the Irish courts will engage in an assessment of the facts before it in determining the level of privacy which can exist in the particular circumstances including balancing competing rights at issue. The decision in ZXC v Bloomberg LP may provide useful guidance for the Irish Courts in carrying out this assessment.
- This UK decision further strengthens privacy rights for individuals by finding a general expectation of privacy exists for those being investigated up to the point of charge.
- The right to privacy is not absolute and will be determined on the facts of each case and balanced against other constitutional rights.
- Whilst this decision is not binding on Irish courts, it is of persuasive value and provides a reminder of the principles involved in such cases.
Contributed by Leeane Grace