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Article by Afeefa Salehmohamed
Since Bloomberg lost a case in the Supreme Court relating to Privacy laws, there are rumours about regression of privacy laws in the UK, to be brought about especially by the rumoured change of the Human Rights Act 1998.
“Reasonable expectation of privacy” is the one sentence that law students always encounter at law school when studying the law of torts. A case brought by a businessman by the legal pseudonym of ZXC against Bloomberg news six years ago hinges on that sentence. Bloomberg news obtained a confidential letter stating that the businessman was being investigated for a criminal offence. He was not yet charged. Bloomberg news decided to write an article on the businessman, who in turn sued Bloomberg news for misusing his private information since he was never charged or arrested for it.
The issue for the courts to consider was whether “a person being investigated for a crime can have a reasonable expectation of privacy.” The court had to address the balance of a person’s right to privacy and a news outlet’s right to freedom of expression. The Supreme Court delivered its judgment on Wednesday 16th of February 2022, ordering Bloomberg news to compensate ZXC—the businessman—£25,000 for misuse of his private information. In the judgement, delivered by Lord Hamblen and Lord Stephens, the justices addressed the practise of authorities such as the police not to identify those being investigated since it could unfairly damage their reputation. Considering the degree of harm caused—dependent on factual circumstances—the Justices mentioned that experience showed that it could be “profound and irremediable.” It held that an individual being investigated for criminal wrongdoing have a reasonable expectation of privacy.
This judgment certainly has significant impacts on media outlets—especially tabloids and ‘high-end’ financial news. For starters, they will not be able to publish stories which are based on leaked documents or even confidential ones. Cliff Richard and the Duchess of Sussex have both won privacy issues in the last 4 years. Bloomberg’s new spokesperson said they were disappointed by the court ruling since it hampers an aspect of the work of journalists, which is “putting the conduct of companies and individuals under appropriate scrutiny and protecting the public from possible misconduct.” The successful argument put forward the businessman was that under the European Convention on Human Rights (ECHR), he reasonably expected that “the details of the British regulator’s criminal investigation into him would not be made public unless he was charged with an offence.” The court that the mere revelation of an existence of a criminal enquiry would have a negative effect on an individual’s private life—“the right to establish and develop relationships with other people”, including causing great damage to the businessman’s reputation who is “actively involved in the affairs of a large public company.”
Potential regression in privacy law
The decision has however been criticised. A journalist at Guardian mentioned that a “healthy democracy requires a better balance to be struck between the freedom of the press and the right to privacy.” The editor-in-chief of Bloomberg News, John Micklethwait, said that the ruling means that ‘serious journalists’ will not be able to report on ‘potential wrongdoing at public companies by powerful people’ while tabloids could still publish articles relating to celebrities’ private lives, which is unfair. He further said that “the right to privacy is only for those who can afford it…” Ministers have also indirectly criticised the court ruling saying that they support freedom of the press, recognising their vital role by holding people accountable and shedding light on issues mattering the most. They said they would study the implications of the judgment.
As mentioned at the start of the article, the Human Rights Act 1998 could soon be replaced by the British Bill of Rights. As everyone in the legal field is aware of, the current Human Rights Act 1998 is based on the ECHR. The shift from the HRA to the ECHR has already been subject to criticisms. One of the successful arguments in the Bloomberg case, as mentioned earlier, based itself on the ECHR. If the HRA 1998 is replaced, would future lawyers still be able to rely on the judgment as a precedent on that ground?