The Court of Appeal in ZXC v Bloomberg  EWCA Civ 611 recently confirmed that, for the purposes of the misuse of private information tort, a person will generally have a reasonable expectation of privacy in the fact that they “have simply come under suspicion” by the police or other state authority.
Before that decision came out, I argued (in Part 1 of this blogpost) that that conclusion was undesirable. This post will argue that breach of confidence provides an alternative – and better – basis for liability in these cases. As with Part 1, these arguments are more fully developed in an article I have recently published in the Journal of Media Law.
1. Arguments against police investigations being private
In Part 1 of this post, I made four arguments against the idea that a person will generally have a reasonable expectation of privacy in respect of the fact that they are being investigated by the police. First, claimants should not be able to rely on the privacy action if their principal objective is the protection of their reputation. Second, the idea that police investigations are usually private is difficult to square with the well-established principle that a court shouldn’t help people to suppress evidence of their own wrongdoing. Third, information about police investigations doesn’t sit comfortably alongside the kinds of information or activity that courts usually regard as private (eg material relating to health, sex life, the details of intimate relationships, etc). And finally, it shouldn’t automatically follow from the fact that information is confidential – as, for example, the trial judge in ZXC found the letter of request sent to the foreign state to be – that it is also private. But none of these arguments mean that it is necessarily acceptable to publish information about police investigations. Other common law actions – most notably in this context, breach of confidence – still have an important role to play.
2. The ongoing importance of breach of confidence
Although the development of the privacy tort has greatly enhanced common law protection of personal information, it is not – and was never intended to be – the be all and end all. Breach of confidence remains important. This is particularly the case where a key objection to the disclosure of personal information relates to the circumstances in which the information was obtained or disclosed – eg if the information was originally disclosed in the context of the doctor-patient relationship or of intimate personal relations. The police investigation cases fall into this category. In these situations, both the context in which any information about the person being investigated was obtained (ie in the course of a police investigation) and the relationship between the parties (ie between citizen and a state investigatory authority) are centrally important.
The facts of Richard v BBC  EWHC 1837 (Ch) help demonstrate this. In that case, Sir Cliff Richard was awarded £210,000 plus unquantified special damages for the broadcast of footage of police officers searching his London flat as part of an investigation into an historic sexual abuse allegation. Officers of the South Yorkshire Police told the BBC when the search was taking place after a BBC reporter led them to believe that the broadcaster had been provided with details of the investigation from someone associated with the Metropolitan Police’s Operation Yewtree and that the BBC was prepared to publish the information. Concerned that such a publication would undermine their investigations, the police offered information about the search in an attempt to stay the BBC’s hand. This raises serious questions about the relationship between the citizen and the state when the latter has the former under investigation. The BBC didn’t find out about the search of the claimant’s apartment from just anyone; the police told them about it themselves. A critical part of the wrong at issue in Richard therefore relates (a) to the way in which the information was communicated and (b) to the relationship between the parties. Both of these factors are central to the breach of confidence action.
3. The Marcel principle
This is where the so-called Marcel principle in breach of confidence steps in. The Marcel principle states that if personal or confidential information is received pursuant to legal power or a public duty, the recipient will owe a duty to the person to whom it relates not to use it for other purposes. The principle gets its name from Marcel v Commissioner of Police of the Metropolis  Ch 225. The claimant in that case argued that documents seized by the police in the course of a criminal investigation into a property development in the Docklands shouldn’t be disclosed to a third party who was involved in a civil action relating to those same property developments. Although the Court rejected that argument because the documents in question were the subject of a subpoena, all three judges held that the police had a duty of confidence to the subjects of the criminal investigation. As Nolan LJ held:
The statutory powers given to the police are plainly coupled with a public law duty… In the context of the seizure and retention of documents… the public law duty is combined with a private law duty of confidentiality towards the owner of the documents.
This principle was reaffirmed in 2016 by the UKSC in R v (on the application of Ingenious Media Holdings) v Commissioners for Her Majesty’s Revenue and Customs  UKSC 54 at . Speaking for the Court, Lord Toulson put it in the following terms:
where information of a personal or confidential nature is obtained or received in the exercise of a legal power or in furtherance of a public duty, the recipient will in general owe a duty to the person from whom it was received or to whom it relates not to use it for other purposes.
Ingenious Media concerned a claim against the Commissioners for Her Majesty’s Revenue and Customs (HMRC) for disclosing to the media information about the claimants’ tax affairs and HMRC’s investigations of them. Applying the principle above, the Court held that HMRC’s entitlement to receive and hold confidential information about a taxpayer’s financial affairs was granted for the purpose of enabling it to assess taxation obligations. Since discussing the claimant’s tax affairs with a journalist was inconsistent with this purpose, HMRC officials were not justified in doing it. (Lord Toulson emphatically rejected the defendant’s suggestion that a general desire to foster good relations with the media or to publicise HMRC’s views on elaborate tax avoidance schemes could justify such a disclosure.)
So Ingenious Media – and the line of authority on which it is based – seem to establish that no person who obtains information pursuant to a legal power or in furtherance of a public duty is free to disclose it to others unless that disclosure is consistent with the original purpose for which the information was obtained. Earlier cases, including Marcel itself, have made it clear that this principle applies to information held by the police. So there seems to be a good argument that a police officer who gives the media information about an investigation into a particular suspect’s conduct would be acting in breach of confidence.
This principle seems like a better basis for liability in cases like ZXC and Richard than misuse of private information. This is for two main reasons. First, as already implied, confidence homes in better than privacy on the central concern in these situations – namely, the fact that the police are sharing information about their investigations into named individuals without a good operational reason for doing so. Second, targeted liability in breach of confidence for the wrongful disclosure of police information would have less of a chilling effect than liability in misuse of private information. The conclusion that people generally have a reasonable expectation of privacy in the fact that they are being investigated by the police risks deterring the victims of crime or other harm from telling others about the wrongdoing. It could also chill the investigation of suspected wrongdoing by the media. In contrast, by putting the relationship between the citizen and the state at the heart of liability, the Marcel principle makes it clear that journalists, victims of mistreatment and other non-legally-empowered actors remain free to disclose such information (subject to liability in defamation or other actions). In an area with potentially significant implications for freedom of expression, this seems desirable.
4. But doesn’t this mean a claimant is still able to hide evidence of his or her own wrongdoing?
As mentioned, one of the arguments I made about misuse of private information in Part 1 of this post, was that courts should be slow to assist claimants who are trying to hide evidence of their own serious wrongdoing. Why doesn’t that argument apply with equal force to a claim under the Marcel principle in breach of confidence? The answer is that it does still apply; it just weighs differently in the balance. Courts applying the no-confidence-in-an-iniquity/public interest defence in confidence need to weigh the public interest in preserving the confidence against the public interest in allowing the information to be shared (see eg, ABC v Telegraph Media Group Ltd  EWCA Civ 2329, ). In the context of the Marcel principle, that means that courts need to weigh, on the one hand, the importance of protecting people who are compelled by law to disclose information to the police or some other body (along with other considerations like preserving the integrity of any investigation) against the need to ensure that the public can be informed about potential wrongdoing.
This differs from the exercise undertaken when courts weigh a claimant’s privacy interest under Article 8 against the defendant’s Article 10 right to freedom of expression. In that scenario, courts need to focus on the strength of the claimant’s privacy interest on the one hand and the public interest in knowing about the information on the other. Although contextual factors such as who is doing the disclosing are relevant to that assessment, the main focus of that enquiry is on the nature of the information and the effect of its disclosure on the claimant. The result of the two balancing exercises might therefore be different. The Marcel principle puts the relationship between the citizen and the police at the heart of all aspects of the courts’ decision-making. That extra weight on the scales might well be enough to outweigh concerns about allowing a person to hide evidence of their own serious wrongdoing even though the claimant’s individual privacy interest would not.
5. Can the media be liable?
Finally, in cases like ZXC and Richard, the defendants were not the investigating authorities themselves but the media companies which published the information. Can media defendants also be liable on the basis of the principle set out in Ingenious Media – ie because the state authority that provided them with the information was using it for unauthorised purposes? There is no obvious reason why not. It is well-known that a party who takes information in circumstances where it knows or ought to know that it is confidential will itself be fixed with those same obligations of confidence. This kind of knowledge won’t usually be difficult to establish in the police investigation cases. For example, although it was unclear precisely how the media got hold of the letter of request in ZXC, Nicklin J expressly held that the defendants should have been aware of its confidential nature (not least because the letter itself made it clear). And in Richards, the BBC clearly knew that they were privy to operational information which the police would not have been prepared to disclose had they not thought that the BBC had information of its own that it was willing to publish. Given that this level of awareness is likely to be typical, liability in breach of confidence could well be imposed on media actors.
It seems unlikely that the Court of Appeal decision in ZXC will be the last word on liability for disclosing information about a pre-charge police investigation. The question of how confidence, privacy and the other information-focused actions fit together in this difficult area is therefore likely to remain an important one and will require careful consideration in the future.
N A Moreham is a Professor of Law at Victoria University of Wellington and editor (along with Sir Mark Warby) of Tugendhat & Christie: The Law of Privacy and the Media (3rd Edn) OUP, 2016.