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February 16, 2022updated 30 Sep 2022 11:02am

Bloomberg Supreme Court judgment gives business leaders anonymity before charge

By Andrew Kersley

The UK Supreme Court has ruled that a person under criminal investigation cannot be named by the media before being charged, dismissing an appeal by financial news agency Bloomberg.

Bloomberg editor-in-chief John Micklethwait said the judgment provides a licence for powerful business people to cover up corporate scandals.

The case relates to a 2016 report in which Bloomberg named a businessman at a large public company under investigation by a UK regulator over involvement in bribery and corruption in a foreign country.

Bloomberg reported on a private letter sent by a regional chief executive of the company (anonymised in the case as ZXC) to a foreign government seeking mutual legal assistance in the investigation.

The executive later sued the news outlet for misuse of private information, and was granted an injunction and damages of £25,000 in an initial court ruling that was later upheld by the Court of Appeal. It held that a person under investigation usually has “a reasonable and objectively founded expectation of privacy” over the fact they are a subject of an investigation.

The ruling is the latest to reinforce the 2018 Cliff Richard versus BBC ruling, which found that the broadcaster’s “somewhat sensationalist” reporting on a police raid of Richard’s home in 2014 was a “serious invasion” of his privacy. He was never arrested or charged over the alleged offences.

The BBC was told by the High Court to pay £210,000 in damages and agreed to cover the star’s legal costs – in a settlement that eventually cost the broadcaster around £2m.

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In this latest case, Bloomberg  argued that the high public interest in publishing information about alleged criminal corruption eclipsed the claimant’s right to privacy, and that the subject’s reputation would not be damaged as readers would be able to reasonably distinguish between being under suspicion and being proven guilty.

The ruling by Lords Hamblen and Stephen, with support from the three other members of the Supreme Court, said:

“Once it is established that the relevant information was that a person, prior to being charged, was under criminal investigation then the correct approach is for a court to start with the proposition that there will be a reasonable expectation of privacy in respect of such information.”

The judgment said that the serious reputational damage involved in the reporting of a criminal investigation severely endangered the right to privacy and “respect for private life” of those involved.

It added: “In this context the question is how others, including a person’s inner circle, their business or professional associates and the general public, will react to the publication of information that that person is under criminal investigation.

“All the material which we have set out… above now admits to only one answer, consistent with judicial experience, namely that the person’s reputation will ordinarily be adversely affected.”

Commenting on the ruling, Matthew Dando, a partner at Wiggin LLP said: “This decision deals a severe blow to the media’s ability to report on investigations and arrests made by the police and other public authorities.

“It is chilling that in a modern democracy there is now a general expectation of privacy in the fact of an investigation by the state.

“The decision tips the scales too heavily in favour of the suppression of information at a time when the media’s role as the eyes and ears of the public has never been more important.

“The court’s rationale that a privacy right is warranted because of the stigma that an investigation or arrest brings, blurs the lines between privacy and defamation, the law which has until now exclusively served to protect reputations.

“This has significant consequences as protections given to the media to defend defamation claims, notably by establishing that the publication was true, are not available in privacy claims to which truth is no defence.”

Commenting on the ruling, Dawn Alford, executive director of the Society of Editors said: “Today’s ruling that a person under criminal investigation has a reasonable expectation of privacy will have far-reaching implications for the British media.

“Not only does the ruling fundamentally go against the principle of open justice, but there is also a real risk that the bar is now so high for privacy cases that legitimate public interest journalism will go unreported.

“It is well-documented that identifying suspects can lead to other complainants coming forward alongside witnesses for any future prosecution or defence. In addition, it is vitally important that the actions of the police remain open to scrutiny.”

Alford added: “While the Society recognises that anonymity is appropriate in certain circumstances, the default position should always be in favour of openness rather than secrecy.”

However, Jon Oakley of London law firm Simkins, said: “It is only right and proper that, unless there are exceptional circumstances, the law recognises that those who are under investigation have a reasonable expectation of privacy unless and until they are charged. As the Supreme Court has today recognised, this is because a person’s reputation will normally be adversely affected were it to become known that they are under investigation, regardless of the strength of the allegations against them.

“We all know that people are presumed to be innocent until proven guilty, but the reality is that at the same time many will assume that ‘there is no smoke without fire’. Today’s decision ensures that individuals are afforded proper protection up until the moment of charge.”

‘Robert Maxwell is smiling’

Bloomberg News editor in chief John Micklethwait has written a forthright comment piece condemning the decision.

He said: “The UK Supreme Court’s decision in Bloomberg LP versus ZXC is something that should frighten every decent journalist in Britain — as well as anybody who cares about justice, the conduct of capitalism or freedom of speech.

“In Britain, we are stumbling toward a system in which tabloids can still peek into celebrities’ bedrooms but serious journalists cannot report on potential wrongdoing at public companies by powerful people.
“In 2016, Bloomberg News reported that ‘ZXC’, a senior executive at a then-UK-listed company with billions of pounds of revenue, was under criminal investigation. There is no dispute about the truth of our reporting; instead, ZXC claimed that our article was an invasion of his privacy. His company’s investors, their customers and the public, in his view, had no right to know about the investigation…
“This was not a story about what most of us might see as ZXC’s private life — a picture of his children, his health details, his romantic history. This was reporting on his business activities — and an investigation by the authorities into possible malfeasance at a huge company that could have an effect on many people who invested in it…
“If you can’t report about potential wrongdoing before any charge is brought, then, once somebody has been charged (and ZXC has not), all the proceedings become sub judice with potential reporting restrictions added….

“Somewhere Robert Maxwell is smiling. Imagine the long list of British corporate scandals, from Polly Peck to Arcadia to Libor, that would have gone unreported, or only been summed up at the end. If some British version of Elizabeth Holmes were to appear in Nottinghamshire, with a miraculous method of interpreting blood genetics and sucking in billions of pounds to a British Theranos, it would be far harder for dogged journalists to track her down in the same way that the Wall Street Journal pursued the real Holmes in California, long before her trial.

“I have worked in supposedly serious journalism for 30 years. My guess — and it can only be that — is that for most of that time, ZXC’s insistence that a criminal investigation into his activities, no matter how innocent, should be hidden from investors would have been laughed out of court. For most of my career, judges have been robust in their idea of what the public interest was, especially when it came to people’s business practices and alleged financial crimes. But that was before the hacking of Milly Dowler’s phone, the monstrous Cliff Richard intrusion (which is cited in the judgment) and other tabloidish excesses.

“Now the wrong journalists are paying the price for that. While many hackers have escaped censure and some proudly appear on TV, babbling on about celebrities they think they know, the more serious press is finding it ever harder to report on businesspeople’s potential wrongdoing or misbehavior.”

A Bloomberg News spokesperson said: “We are disappointed by the court’s decision, which we believe prevents journalists from doing one of the most essential aspects of their job: putting the conduct of companies and individuals under appropriate scrutiny and protecting the public from possible misconduct.”

The news comes amid increasing concern over the use of “lawfare” to attempt to silence legitimate reporting, with former Brexit Secretary David Davis warning that an increase in costly and often baseless libel suits had left many newspapers unable to cover certain topics or individuals because they did not want to spend millions on ensuing legal fees.

Read the Bloomberg versus ZXT Supreme Court ruling in full

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