On 17 December 2020, the UK Supreme Court (Lords Reed, Sales and Burrows) granted the defendant in the case of ZXC v Bloomberg LP permission to appeal the order of the Court of Appeal dated 15 May 2020 ( 3 WLR 838).
The Court of Appeal (Underhill, Bean and Simon LJJ) upheld a decision of Nicklin J ( EWHC 970 (QB)) that the publication of an article containing confidential information obtained from a UK law enforcement agency which was investigating a businessman was a misuse of private information. We had a case comment on the Court of Appeal decision.
The defendant, Bloomberg LP, appealed against the decision of Court of Appeal on three grounds.
First, that the Court of Appeal was wrong to hold there is a general rule that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.
Second, that the Court of Appeal was wrong to hold that the fact that information published by Bloomberg about a criminal investigation originated from a confidential law enforcement document rendered the information private and undermined Bloomberg’s ability to rely on the public interest in its disclosure.
Third, that the Court of Appeal was wrong to uphold the findings of Nicklin J that the the claimant had a reasonable expectation of privacy in relation to the published information complained of, and that the Article 8/10 balancing exercise came down in his favour. It is contended that it should have been held that there was no reasonable expectation of privacy and that, in any event, any reasonable expectation of privacy was weak and overridden the Article 10 rights of Bloomberg and the public.
The Court of Appeal’s decision in ZXC was the most important privacy judgment of 2020. The Court held an individual who is being investigated by a law enforcement body has a reasonable expectation of privacy in the fact and details of such an investigation. This is one of the most contentious current issues in privacy law. This appeal by a media organisation will definitively settle an issue which has been argued before the Courts on many occasions over recent years.
It is likely that the appeal will be heard in the second half of 2021.
Update: The appeal has now been listed by the UK Supreme Court for 30 November and 1 December 2021.