Reporting on Serious Wrongdoing in a Post-ZXC World – Jeevan Hariharan

Is English privacy law now so claimant-friendly that the press cannot adequately report on serious wrongdoing, such as sexual misconduct, when it is in the public interest? This difficult issue is the focus of a new article I have written, published open-access in the Journal of Media Law.

In the immediate aftermath of the Supreme Court’s judgment in ZXC v Bloomberg LP [2022] UKSC 5, many journalists said that the answer to the above question is yes. That decision, as is well-known, held that when determining liability for the misuse of private information (MPI) tort, as a legitimate starting point, a person has a reasonable expectation of privacy in information related to a police investigation about them up until the point of charge. Commentators from many prominent media outlets came out swiftly criticising the ruling, saying that ZXC creates a dangerous precedent which will actively harm legitimate investigative journalism which is in the public interest.

For example, on the afternoon ZXC was handed down, the editor-in-chief of Bloomberg John Micklethwait wrote a scathing opinion column, saying that ZXC “should frighten every decent journalist in Britain – as well as anybody who cares about justice, the conduct of capitalism or freedom of speech”. The judgment, he said, signalled that “serious journalists cannot report on potential wrongdoing at public companies by powerful people” and that it will be easier for oligarchs and business people to hide wrongdoing and misbehaviour.

In a similar vein, the editorial team at the Guardian expressed fears that, following ZXC, investigative journalism into corporate wrongdoing would be prevented. The Guardian also highlighted that sexual misconduct such as that which Harvey Weinstein committed would be more difficult to expose, as reduced publicity in such cases makes it less likely that members of the public will come forward with fresh testimony. Overall, the opinion column said that the Supreme Court’s decision “confirmed a direction of travel that began a decade ago with the Leveson inquiry”. The concept of privacy, it said, has been interpreted more and more expansively by English courts, with freedom of expression taking “a back seat”.

Assessing the media’s concerns: Shifting the focus to stage two of MPI

The core purpose of my article is to assess whether the fears that the media has articulated about ZXC are well-founded or not. My starting point is that the concerns that journalists and media bodies have expressed following the decision need to be taken very seriously. It is a fundamental principle in a free and democratic society that the press should be able to bring serious wrongdoing to the public’s attention. It is particularly troubling that the alarm has been sounded by media outlets that have conducted crucial investigative journalism in the past. And such concerns are all the more important to take seriously in a context where there are growing fears about the use of strategic lawsuits against public participation (SLAPPs) as a tool to shield the rich and powerful from public criticism and action.

The crux of my argument, however, is that a proper examination of whether the press are correct requires an analysis of the second stage of the MPI test. After all, it is at stage two, not stage one, that a journalist’s rights to free expression are taken into account and balanced against the claimant’s privacy. Thus far, stage two has received comparatively little attention in the commentary on ZXC and previous police investigation cases such as Richard v BBC [2018] EWHC 1837 (Ch) and Sicri v Associated Newspapers [2020] EWHC 3541 (QB). This is not necessarily surprising, as the general rule laid down in previous decisions and confirmed by the Supreme Court is only about stage one, and involves highly controversial issues about the protection of reputation through MPI and the boundaries between privacy and defamation law. Yet, in the context of assessing the press’ concerns about chilling effect, it is crucial to understand the precise way in which the stage two balancing exercise takes place in these cases.

With this in mind, a large section of the article is devoted to examining the stage two balancing exercise conducted in three key police investigation cases: Richard, Sicri and the lower court decisions in ZXC itself ([2019] EWHC 970 (QB) and [2020] EWCA Civ 611). Going through these decisions in detail, a complex and nuanced story emerges about what the police investigation case law actually reveals about the press’ ability to conduct public interest journalism.

Pulling together my findings, I say that there are five key principles which emerge from this line of cases about reporting on investigations. They are as follows.

Five key principles on the balancing exercise emerging from Richard, Sicri and the lower court decisions in ZXC

1. Principle 1: If a claimant has established that they have a reasonable expectation of privacy in a police investigation about them at stage one of an MPI claim, the determination of whether a publication is in the public interest at stage two is a granular, fact-specific exercise. It may be in the public interest to report on some details about the investigation but not others. The following specific points can be drawn from the case law:
   1. Reporting in general terms about police investigations is highly likely to be in the public interest. It has been recognised to be in the public interest to report on police investigations into various matters without naming individual suspects including alleged sexual abuse by celebrities, suspected involvement in terrorist activity, and suspected involvement in corruption in a foreign state. Such reporting can be justified by reference to the press’ role as a “watchdog” and would extend in particular to reporting on any perceived inadequacies of the investigation.
   2. Without more, the public interest is unlikely to be served by naming an individual who is being investigated by the police. To the contrary, there is often a public interest in such cases in not publishing the claimant’s identity, especially as it may prejudice an active investigation. By itself, it is not a justification for naming a suspect that it makes for livelier copy, that there are commercial imperatives for publishing the individual’s name or that the news outlet will itself come under criticism if it does not publish this information.
   3. Even if the public interest is not served by naming an individual, it may be legitimate to provide other details about a suspect, including their gender, age and street where they live (even if this allows some people to identify the suspect).
2. Principle 2: While it is permissible for journalists to use subtle means to pursue a story, where information is obviously private, it will weigh against journalists if they use threats to obtain the relevant information.
3. Principle 3: The manner and form in which information about a police investigation is publicised may be relevant to the balancing exercise. It may be appropriate to provide a claimant time to challenge a publication before it is published. While a low-key news report can still involve a serious interference with privacy, it will likely weigh against journalists if they employ dramatic or highly sensationalist coverage.
4. Principle 4: The determination of whether a publication is in the public interest is an objective matter, to be determined by the court not the journalists involved. However, reliable evidence of the actual thought processes of editorial decision makers may be probative in identifying whether there is, for example, a rational basis for disclosure, whether naming the claimant indeed generates more interest in the article, and whether the journalists’ conduct met the standards of the relevant privacy code (which courts are required to take into account under s 12(4)(b) of the Human Rights Act 1998).
5. Principle 5: There is a distinction between reporting on: (i) factual allegations about a claimant’s conduct; and (ii) an official investigation about that conduct. The principle in ZXC does not prevent a journalist from doing their own investigative journalism into an individual’s conduct. In certain situations, the legitimacy of publishing information in relation to (i), may mean it is also in the public interest to report on (ii). However, the distinction may be important and relevant in many cases.

Where does this leave us? A complex and layered story

Appreciating the detailed way in which courts have considered the public interest balancing exercise in key cases reveals that the legal reality is not quite so straightforward as the media has made out in their commentary about ZXC. The most important point which the media comments overlook is principle 5 above, which emphasises the distinction between the press themselves investigating and reporting on an individual’s conduct and reporting on an official investigation about that conduct. By confirming this distinction, the case law on police investigations leaves untouched the ability of the media to conduct and report on their own investigations.

I also argue in the piece that the media have tended not to acknowledge the way that the courts approach the public interest in a granular way, as reflected in principle 1 above. Looking through the case law, perhaps the main headline point that can be drawn from the decisions is that there is a difference between reporting in general terms on a police investigation versus reporting on a suspect’s name and that the public interest could be served in a particular case by the former and not the latter. This is not something that is addressed in the media commentary on ZXC.

However, important as it is to point out these difficulties in the media’s narrative, the decisions also reveal a key kernel of truth to what the media is saying. Significantly, the principles I extract help us to see that there are real uncertainties about the circumstances in which it would ever be justified to name the suspect of a police investigation in the public interest. Without more, this does risk a chilling effect, and the press are right when they point out that this line of case law can stifle reporting which would encourage other victims to come forward.

The end result is a complex and layered story about what Richard, Sicri and ZXC mean for public interest reporting.

The way forward, as I argue at the end of the article, is not necessarily for courts to row back from ZXC or any of the main determinations in the police investigations case law. However, in appropriate cases courts should more explicitly recognise that there will be circumstances where releasing a suspect’s name could be justified at stage two of an MPI claim and to provide guidance about what legitimate public interest reporting looks like in such cases. The principles I have identified can form the basis for this, and ensure that important investigative journalism into serious wrongdoing is not just permitted but positively encouraged.

Dr Jeevan Hariharan is a Lecturer at the Faculty of Laws, University College London. This post is based on an article recently published in the Journal of Media Law. The full article is available open-access here.