Do criminal suspects have the right to privacy?

On 16 February 2022, the Supreme Court confirmed that a suspect under investigation has a reasonable expectation of privacy. Unanimously dismissing an appeal by financial news service Bloomberg over its reporting of an investigation by an unnamed law enforcement body into allegations of corruption, bribery, and fraud by a company in a foreign country, the UK’s highest court confirmed that a person who is subject to a criminal investigation has a reasonable expectation of privacy, before they are charged.

This decision effectively confirms the ‘general rule’ of pre-charge anonymity, and is likely to have profound implications, both for those under investigation, and for the media.

In 2016, Bloomberg published an article about a criminal investigation into an individual known as ‘ZXC’ and his employer, based on information obtained from a confidential Letter of Request issued by a UK law enforcement body. The criminal investigation commenced in 2013. To date, ZXC has not been arrested or charged with any crime.

‘ZXC’ brought a claim against Bloomberg under Article 8 of the ECHR ( which concerns right to respect for private and family life, home and correspondence) for misuse of his private information. Bloomberg appealed, and, at a trial taking place in November 2018, the appeal was dismissed by the Court of Appeal, as Nicklin J held that the public interest lay in not publishing the contents of the Letter of Request given the importance of maintaining the confidentiality of a live criminal investigation.

On the 16 February 2002, the Supreme Court, in holding that a person under criminal investigation has a reasonable expectation of privacy, rejected Bloomberg’s appeal and upheld the decision of the Court of Appeal. Article 8 ECHR, the Supreme Court confirmed in its substantial ruling, encompasses a ‘reputational’ dimension. This is protected both by the tort of defamation, and by the tort of misuse of private information, where claimed harm reaches a certain severity threshold.

The decision recalls – and echoes - the 2018 case of Sir Cliff Richard, who, after the corporation broadcast footage of a police raid on his home in the wake of sexual assault allegations against the singer, sued the BBC and was awarded £210,000 in damages. He was under criminal investigation at the time, but was never charged.

This is the first time the Supreme Court has considered the privacy issue. It is important because it will have a major impact on the manner in which the media will be able to report on the early stages of most criminal investigations, and is likely to be a universally unpopular decision with the press.

Conversely it will come as a relief to those under investigation for crimes, who are not subsequently charged. They will no longer suffer potentially lasting and irreparable damage to their reputation simply as a result of having been investigated.

When reporting on criminal allegations or arrests, journalists and publications will now have to consider privacy law, as well as the usual issues around defamation and truth, when naming those under investigation. The starting point has shifted from whether information is true, to whether it is private. The rule of a reasonable expectation of privacy applies, of course, only until the suspect has been charged, at which point it is likely to be reversed, so that the person has no reasonable expectation of privacy, save for exceptions such as reporting restrictions.

If your privacy has been breached by a newspaper, reporting on a case where you are a suspect, you could well have a claim for compensation. Contact the experts at Samuels to discuss questions of privacy or reputation management.

Article credit: Lalla Merlin