Next week, on 30 November and 1 December 2021, the Supreme Court will hear arguments in ZXC v Bloomberg LP. The case gives the court an opportunity to answer one of the most important questions which has emerged in English privacy law in recent years: does a person who has not been charged with an offence have a reasonable expectation of privacy in a police investigation into their activities?

The Court of Appeal in ZXC [2020] EWCA Civ 611 answered this question affirmatively, confirming a growing body of High Court decisions including Nicklin J’s first instance decision in ZXC [2019] EWHC 970 (QB) and Richard v BBC [2018] EWHC 1837 (Ch).

Protecting reputation through the back door of privacy?

One reason why experts will be following ZXC so keenly is because the primary issue under appeal focuses attention on the complex relationship between the torts of privacy and defamation in English law.

In the authorities so far, courts have supported the conclusion that a person has a reasonable expectation of privacy in a police investigation by pointing out that the release of pre-charge information will have a significant, perhaps irremediable, reputational impact on the claimant.

At first blush, this logic seems entirely unobjectionable. As Simon LJ put it in ZXC in the Court of Appeal, the police’s suspicion of a claimant may turn out to be well-founded or ill-founded. But until that point, the claimant’s privacy should generally be respected because it is a “human characteristic to assume the worst (that there is no smoke without fire); and to overlook the fundamental legal principle that those who are accused of an offence are deemed to be innocent until they are proven guilty” (at [82]).

The difficulty that arises is that the protection of reputation has long been the province of defamation, not privacy. Over time, courts have carefully developed a body of principles in defamation law to protect reputation in a way which strikes an appropriate balance with freedom of expression. Chief among these is that defamation law only applies to false statements about the claimant because truth is a complete defence. But in police investigation cases, the information being released about the claimant (i.e. that they are under suspicion) is true. Therefore, as commentators have pointed out (including NA Moreham in an excellent post on this blog), there is a very real concern that the privacy tort is being wielded in police investigation cases like ZXC to circumvent the strict requirements of defamation.

Reputational harm damages in privacy cases

In an article forthcoming in the Journal of Media Law, I develop an argument which goes some way to solving the puzzle about privacy and defamation which the Supreme Court faces in ZXC.

The article is not directly concerned with the question of whether a person has a reasonable expectation of privacy in a police investigation concerning them. Rather, my primary focus is on the downstream issue of damages. Assuming that the lower courts have been correct that information about a police investigation is the proper subject of a misuse of private information (MOPI) claim, I ask: should a claimant be entitled to separate compensation for reputational harm in a privacy case?

As it happens, this damages question is one on which the High Court is currently divided. In Richard, Mann J concluded that in addition to damages for distress, pecuniary losses, and ‘loss of control of information’, a claimant can also be compensated for any reputational harm resulting from a privacy invasion (see [334]-[346]). At first instance in ZXC, Nicklin J indicated (at [150]-[151]) that in order for such damages to be awarded, the defendant would have to be given the opportunity to defend as true any statements that give rise to the privacy action. And in Sicri v Associated Newspapers [2020] EWHC 3541 (QB), Warby J (as he then was) took the position that reputational harm damages should, as a matter of principle, not be available in a MOPI claim (see [163]).

The thrust of my argument on reputational harm damages, which has broader application beyond the police investigation context, is as follows. Defamation and MOPI are chiefly directed at protecting one ‘core’ interest each. For defamation, the core interest protected is a person’s reputation. Importantly, however, defamation law is not concerned with protecting a person’s reputation generally, in the sense of how they are perceived by others in the community. Rather, defamation protects a particular aspect of a person’s reputation; specifically, their interest in not being judged by society on the basis of false facts. For MOPI, on the other hand, the core interest protected by the tort is an individual’s informational privacy. This refers to one’s control over the use of information about themselves.

The identification of the core interest protected by defamation and MOPI does not mean that these are the only interests covered by each of the torts. In each case, as a result of protecting a core interest, other ‘subsidiary’ interests will be protected incidentally or parasitically.

In the case of defamation, securing one’s social standing against false allegations will incidentally help secure other aspects of one’s well-being, such as holding down a job or the ability to form meaningful relationships. As for MOPI, informational privacy will protect subsidiary interests as well. Most importantly, for present purposes, control over the use of information will often allow someone to keep their reputation intact. In this context, it is not just a specific aspect of a person’s reputation that is incidentally protected, but their reputation more generally.

Courts in both defamation and MOPI cases are already in the practice of awarding damages specifically for interference with the core interest that each tort protects. As I explain more fully in the article, in defamation cases, these damages (which I call ‘interference damages’) are damages for reputational harm. For the MOPI tort, interference damages are damages for loss of control of information. In each case, the interference damages correspond directly with the core interest the tort protects, and are awarded only in circumstances where the precise conditions for liability are met.

The principled problem with awarding damages for reputational harm in privacy cases is that it represents the interference damages corresponding to both the MOPI and defamation torts being awarded in a MOPI claim. Doing so runs roughshod over the careful and limited way in which the law has chosen to protect reputation. English tort law has chosen not to protect a person’s reputation generally via defamation; rather it has crafted the action to protect a person’s interest in not being judged on the basis of false facts. To transfer reputational harm damages into the MOPI context is to allow for the direct circumvention of defamation law’s carefully constructed limitations.

Application to the issue on appeal

How does this analysis on damages help us with the headline issue on appeal in ZXC? I suggest that much of the concern about the Court of Appeal decision conflating defamation and privacy law can arguably be alleviated if it is appreciated that MOPI and defamation protect different core interests, and that reputational harm damages are tethered to defamation.

The first point to note is that the above analysis explains how defamation and MOPI can both serve to protect a person’s reputation while remaining distinct causes of action. Reputation, it can be acknowledged, will never be fully severable from privacy. Indeed, in many cases, reputation will be an important ‘subsidiary’ interest incidentally protected by respecting a person’s privacy. As such, the fact that information about a police investigation will have a significant reputational impact on the claimant should not, by itself, be any bar to such material forming the basis of a MOPI claim.

Second, and crucially, recognising that reputational harm damages are unavailable in a MOPI claim helps the court to maintain the distinctness of the two torts in practice. This is not meant to imply that damages are the only relevant issue here. As Moreham has pointed out, the Court of Appeal’s decision in ZXC also potentially allows for circumvention of the rule in Bonnard v Perryman [1891] 2 Ch 269 that interim injunctions should generally not be awarded in defamation if the defendant intends to prove the publication is true. But damages are very important. If a person is deemed to have privacy in a police investigation and can recover compensation for any reputational impacts, the risk of defamation principles being sidestepped through MOPI is particularly significant. The claimant is effectively permitted to secure the same amount of compensation they would have in defamation, without pleading and proving the essential requirements.

This is arguably exactly what happened in Richard when reputational harm damages were awarded in addition to damages for distress, pecuniary loss and loss of control of information. In that case, the way in which defamation rules were avoided is particularly stark because the MOPI claim appears to have been brought after the strict one-year limitation period for defamation had expired. This allowed Richard to wait until after the police investigation into him had finished, and thereby avoid the possibility of the BBC running a truth defence while the investigation remained on foot.

If the court accepts that reputational harm damages are restricted to defamation, it can ensure that a claimant will need to do more than simply bring a privacy action for reputational impacts to be meaningfully compensated. For the claimant’s reputational harm to be recognised through substantive damages, the claimant will specifically need to plead and prove defamation as well.

Jeevan Hariharan is a PhD Candidate and Associate Lecturer at the Faculty of Laws, University College London.

This blog post is based on an article which is forthcoming in the Journal of Media Law. A prepublication version is available here.