Protecting or Chilling?

This blog post has been contributed by Dr Carol Brennan, Module Convenor for Tort law.

Confidential sign

Tort students will be well aware of the recent creation of the action for misuse of private information. Facilitated by the Human Rights Act 1998 and the incorporation of the article 8 right to private and family life into UK law, this action has filled a gap in privacy protection left by the older and more limited action for breach of confidence.

The key case in this development is Campbell v MGN.  In 2001 the supermodel Naomi Campbell was successful in her action against a tabloid newspaper which published an account (with photographs) of her attendance at a Narcotics Anonymous meeting in London. Following the evolution of the law post-Campbell, we now know that misuse of private information occurs when: 1) there is found to be a reasonable expectation of privacy in relation to the information; then 2) in the subsequent balancing exercise between article 8 and article 10, freedom to publish does not outweigh the claim to privacy.

One area in which has seen the testing of the limits of this new protection concerns investigation and prosecution of crime. In 2018 the entertainer Sir Cliff Richard brought a successful action against South Yorkshire Police and the BBC for the way in which an investigation against him for an historic abuse allegation was publicised. Ultimately no charge had been brought against Sir Cliff and the exceptionally intrusive nature of the publication was held to entitle him to £210,000 damages (plus legal costs in the millions) for misuse of private information.

In early 2022 the Supreme Court gave judgment in ZXC v Bloomberg [2022] UKSC 5.  A non-UK resident, regional CO of an overseas company, was under investigation for possible offences of corruption, bribery and fraud. Bloomberg, the international media organisation, published an article containing information copied from a

letter of request sent to a foreign government the UK enforcement body in the process of investigation (This formal stage in investigating crime with an international aspect is termed ‘mutual legal assistance’).

In relation to stage 1) the Supreme Court recognised that those involved in public activities must tolerate wider limits of acceptable criticism than the ordinary private individual. Somewhat contradictorily it was said that this is not affected by either the nature of the claimant’s alleged activity (business as opposed to personal) or the by the nature of their public persona. The fact that the letter itself was headed ‘Confidential’ weighed heavily but was not conclusive in establishing the expectation of privacy.

Moving on to the second stage, defendants’ arguments in favour of publication failed to persuade the Court, with arguments based upon principles of ‘open justice’ or awareness of the adage ‘innocent until proven guilty’ in the minds of the readers. The legal dispute, which had been running since 2016, was resolved (as in the lower courts) in favour of ZXC, confirming a damages award of £25,000.  

The case provides further evidence that misuse of private information is a fully formed tort in its own right – distinct from defamation,  breach of confidentiality and breach of data protection. It was confirmed that there is a clear reputational dimension to the article 8 right.

Predictably, the decision in ZXC has not been greeted favourably by much of the press, where there are views that it will have a chilling effect on valuable investigative reporting. The press has an important role in scrutinising and exposing investigating authorities who may be abusing their powers, as in the ‘Operation Midland’ investigation into a so-called ‘Westminster VIP paedophile ring’, which were found to be baseless. As with defamation, it is said that if information is regarded as private where it might cause serious reputational harm, then the wealthy will have the means of managing their reputations that is not available to the majority of citizens.

However it should be noted that polls have shown that the principle of pre-charge anonymity is supported by 86% of the population. Experts in the field believe that the judgment is not authority for the proposition that the press may never publish that an individual is under investigation, but that where the detail of the investigation has come from a confidential source the balance falls, for now, in favour of the private individual’s article 8 rights.

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