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May 15, 2020updated 07 Nov 2023 5:49am

Sir Cliff Richard ‘chilling effect’ hits Bloomberg as judges reject appeal over criminal probe report

By Charlotte Tobitt

The Court of Appeal referenced Sir Cliff Richard’s privacy win over the BBC as it rejected a Bloomberg challenge to a ruling against its reporting of a criminal probe into a businessman.

Judges upheld the original court finding, which ordered Bloomberg to pay £25,000 in damages for publishing details, taken from a leaked confidential letter, of the ongoing criminal investigation.

The Society of Editors hit out at the Court of Appeal judgment, which was published today, saying the “rich and powerful will use these rulings to hide from public gaze and to ensure witnesses and others who may be helpful to an investigation are unaware of events”.

Bloomberg had published information from a confidential letter of request to a foreign state from a UK law-enforcement body which was investigating possible offences of corruption and bribery in relation to the businessman’s company and a number of named individuals, including him.

The article included details of the activity being investigated, including whether the businessman had been involved in corruption in relation to his company’s activities in the foreign country.

Mr Justice Nicklin said last year that the Richard case, along with a body of case law, shows “in general a person does have a reasonable expectation of privacy in a police investigation up to the point of charge”.

Appealing the judgment, which backed the anonymous businessman’s claim for misuse of private information, Bloomberg claimed this was wrong in law.

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Antony White QC argued it was necessary to look at the nature of the activity in question and whether it is part of the person’s private life or of an “essentially public nature”.

“Businessmen who are actively involved in the affairs of large public companies are not operating in that sector of their lives as private individuals, and they inevitably and knowingly lay themselves open to close scrutiny of their acts,” he said.

But in the appeal judgment published today Lord Justice Simon said the Richard case showed the “legitimate starting point” for privacy during a criminal investigation.

He said: “…those who have simply come under suspicion by an organ of the state have, in general, a reasonable and objectively founded expectation of privacy in relation to that fact and an expressed basis for that suspicion.

“The suspicion may ultimately be shown to be well-founded or ill-founded, but until that point the law should recognise the 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.”

The judge added that reasonable expectation of privacy is not generally dependent on the type of crime being investigated or the public characteristics of the suspect, for example whether they work in politics or business.

He went on: “To be suspected of a crime is damaging whatever the nature of the crime: it is sensitive personal information and there can be little justification for a hierarchy of offences giving rise to suspicion; although I would accept that there may be some cases where the reasonable expectation of privacy may be significantly reduced, perhaps even to extinction, due to the public nature of the activity under consideration (rioting, for example or… electoral fraud).”

‘Decision is likely to have significant ramifications for the media reporting of criminal investigations’

An analysis by legal firm 5RB said: “The decision is likely to have significant ramifications for the media reporting of criminal investigations before the suspect has been charged.”

Another by Matrix Chambers said the judgment “will have an impact on how such incidents are reported by the media in future”.

Society of Editors executive director Ian Murray warned the judgment “will do nothing to lift the fog of confusion in the media that surrounds whether a person under investigation by the police or any other state body should be granted anonymity until they are charged.

“The Cliff Richard ruling undoubtedly created a chilling effect on reporting such matters and this will continue.

“The Society of Editors would maintain that the public has a right to know if someone is under investigation and that shrouding inquiries in a cloud of secrecy only serves to create rumour and speculation.

“The risk is that the rich and powerful will use these rulings to hide from public gaze and to ensure witnesses and others who may be helpful to an investigation are unaware of events.”

Appeal judge Lord Justice Simon also said that although there was public interest in alleged corruption in the foreign state, the same was not true of the confidential contents of the letter.

“Although there was no claim for breach of confidence, there was a substantial and clearly identified public interest in maintaining the confidentiality of the [letter] and its information,” he said.

A Bloomberg News spokesperson said: “We are, of course, very disappointed with the appellate court’s decision and are considering our options.”

Read the Court of Appeal judgment on Bloomberg v ZXC here.

Picture: Nigel Young/Foster+Partners

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