The Court of Appeal will soon be hearing an appeal in ZXC v Bloomberg LP  EWHC 970 (QB) in which Nicklin J joined a handful of other English judges in concluding that “in general, a person does have a reasonable expectation of privacy in a police investigation up to the point of charge” ().
This blog – which draws on an article I recently published in the Journal of Media Law – argues that this proposition is problematic. It will be followed by a second blogpost arguing that the law of confidence is better equipped than privacy to deal with media disclosures by police or other investigatory authorities which are not operationally justified.
I. Just because information is confidential doesn’t mean it is private
One of the reasons courts have given for finding that police investigations should usually be regarded as private is that such investigations are confidential. Nicklin J emphasised this in ZXC, stressing both that the information published was contained in a letter of request which was clearly highly confidential and that confidentiality is essential for maintaining the integrity of police investigations.
The confidentiality of a police investigation might well mean that as a matter of fact the information was inaccessible to those outside the inquiry. This will have a significant corollary benefit for the person being investigated – the obligation of confidence will mean that nobody outside the relevant police force knows about the investigation. But it does not follow from this that the claimant has a right to say that the information is private. In order to establish that claim, the claimant would have to show that the information belonged to an intimate part of his or her life into which others should not enquire. An obligation of confidence which was imposed to protect the interests of someone other than the claimant – in these circumstances to help the police act against the claimant’s interests – should not help him or her to do this.
II. Privacy can protect reputation but only incidentally
The second reason that courts have given for the proposition that police investigations should usually be regarded as private is that disclosure of the information can harm the claimant’s reputational interests. Mann J stressed this factor in his decision in Richard v BBC  EWHC 1837 (Ch) that the defendant should compensate Sir Cliff Richard for broadcasting footage of a police search of his London flat (taken from outside the property). Throughout the judgment, Mann J emphasised the significant “stigma” attached to the fact that such an investigation was taking place.
The disruption that using the privacy tort to protect reputation causes to defamation is clearly articulated by Nicklin J in ZXC and will not be discussed in detail here. Suffice to say that awarding substantial damages for reputational harm without giving the defendant the opportunity to prove the truth of the allegations creates a real risk that the claimant will be compensated for loss of a reputation which he or she did not deserve. Why bother jumping through the hoops of the defamation action if one can avoid them by using privacy?
Less obvious perhaps is the fact that using the misuse of private information action to protect reputation muddies the privacy waters. Unlike defamation, the privacy action is primarily concerned with the revelation of information which is true. It protects people against disclosure of their actual health records, of their real thoughts, against the exposure of their actual body. The dissemination of falsehoods (although usually problematic for other reasons) does not lead to such exposure. This doesn’t mean falsehoods can never be the subject of a privacy claim. As long as the privacy action isn’t an attempt to avoid the strictures of the defamation action, courts have held that they can be. But such cases are the exception. In the usual course of things, damage to privacy is not done because the information is false; it is done because it is true.
This means the tort of misuse of private information can only protect reputation incidentally. It does this when the information which is being protected – because is private – would make people think less of the claimant. If the private information in question reveals, say, sexual peccadilloes which are harmless but generally frowned upon then, because others are precluded from knowing about them, the claimant will continue to benefit from others’ assumption that his or her sexual preferences are more orthodox. The information is protected because – irrespective of the effect on the subject’s reputation – information of that nature belongs to a part of the claimant’s life which is no-one else’s concern. Information that makes you look bad might belong to these realms of life but the inverse does not necessarily follow: something will not belong to the private realm of your life because it harms your reputation.
III. Should evidence of wrongdoing be private?
The final problem with the idea that people usually have a reasonable expectation of privacy in respect of police investigations is that, if police are investigating a suspect, it is reasonable for a court to assume that it is because there is some reason to think he or she might be guilty of an offence. Suppressing the fact that a person is being investigated will therefore usually prevent the public from finding out about possible wrongdoing on his or her part. It is a well-established principle of common law that courts will not usually do this. In breach of confidence, there is no confidence in an iniquity. In the privacy context, courts have said that there is no reasonable expectation of privacy and/or a countervailing public interest in respect of allegations of wrongdoing. For example, in Lord Browne of Madingley v Associated Newspapers Ltd  1 QB 103, the Court of Appeal held that the Group Chief Executive of BP could not claim privacy protection in respect of allegations that he had had allowed his romantic partner to use BP’s personnel and equipment for his own purposes and shared confidential information about the company with him.
Although this case law was not discussed in Richard, ZXC or any other case supporting the idea that a person usually has a reasonable expectation of privacy in respect of police investigations, it seems relevant. The iniquity cases and privacy decisions like Browne seem to reflect a wider principle that the public is entitled to know about harmful conduct which is said to be occurring in its midst. Lord Denning MR articulated this idea expressly in Initial Services Ltd v Putterill  3 All ER 145, 148 when explaining that:
No private obligations can dispense with that universal one which lies on every member of the society to discover every design which may be formed, contrary to the laws of the society, to destroy the public welfare.
This seems intuitively right. Saying that something is private is tantamount to saying that the information relates to an aspect of the claimant’s life which is no-one else’s concern. That is a difficult position to maintain if information relates to evidence that the claimant is harming others or is otherwise up to no good. If it is accepted that the fact that a police investigation is taking place suggests that such wrongdoing might be occurring, the proposition that the subject of the investigation has a reasonable expectation of privacy therefore seems to be at odds with existing authority.
It would be helpful if these questions about the relationship between confidence, reputation and privacy and about the suppression of evidence of possible wrongdoing were addressed before courts re-assert the proposition that a person usually has a reasonable expectation of privacy in respect of a police investigation into his or her conduct. Indeed, given the potential disruption that that conclusion poses to both privacy law and defamation it would seem preferable that any liability hone in on wrong at the heart of cases like Richard and ZXC; namely, that police allowed details of their investigations to fall into the hands of the media (in the case of Richards, with investigating officers’ consent). Part II of this blogpost will argue that the best way to do this is not through the tort of privacy but breach of confidence.
N A Moreham is Professor of Law at Victoria University of Wellington and an editor of The Law of Privacy and the Media (3rd ed) (OUP, 2016).
The article on which this blog is based was published in (2019) Journal of Media Law 1-21.