On appeal from  EWCA Civ 611
The Respondent is a US citizen. He and his employer were the subject of a criminal investigation by a UK Legal Enforcement Body. During that investigation, the UKLEB sent a confidential Letter of Request to the authorities of a foreign state seeking, among other things, information and documents relating to the Respondent. The Letter expressly requested that its existence and contents remain confidential.
The Appellant obtained a copy of the Letter and published an article based on its content. After the Appellant refused to remove the article from its website, and following an unsuccessful application for an interim injunction, the Respondent brought a successful claim against the Appellant for misuse of private information.
The Respondent claimed that he had a reasonable expectation of privacy. The first instance judge held that the Appellant had published private information that was in principle protected by article 8 of the European Convention on Human Rights (the “ECHR”); and that in balancing the parties’ rights under article 10 ECHR, the balance favoured the Respondent. An appeal against that judgment was dismissed by the Court of Appeal.
HELD – Appeal unanimously dismissed. It held that, in general, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.
Misuse of private information is a distinct tort where liability is determined by applying a two-stage test. Stage one is whether the claimant objectively has a reasonable expectation of privacy in the relevant information considering all the circumstances of the case. Such circumstances are likely to include, but are not limited to, those identified in the Court of Appeal’s decision in Murray v Express Newspapers plc  EWCA Civ 446 at para 36 (the so-called “Murray factors”). If so, stage two is whether that expectation is outweighed by the publisher’s right to freedom of expression. This involves a balancing exercise between the claimant’s article 8 ECHR right to privacy and the publisher’s article 10 ECHR right to freedom of expression, having due regard to section 12 of the Human Rights Act 1998.
Issue 1: The stage one test and whether the Court of Appeal was correct to hold that there is a general rule that a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.
It is widely accepted as a matter of public policy that there is a negative effect on an innocent person’s reputation in publishing that he or she is being investigated by the police or another state organisation. There is a uniform general practice by state investigatory bodies not to identify those under investigation prior to charge.
First, the Appellant submitted that there was no need for a general rule given the public’s ability to observe the presumption of innocence. The presumption of innocence is a legal presumption applicable to criminal trials. But in this different context, the question is how others, including a person’s inner circle, will react to the publication of information that that person is under criminal investigation.
Second, the Appellant argued that the courts’ reliance below on the “human characteristic” to equate suspicion with guilt runs contrary to well-established principles in defamation law such that the ordinary reasonable reader can distinguish suspicion from guilt and is not unduly suspicious or avid for scandal. But the Respondent did not bring a claim in defamation. The tort of misuse of private information is a separate tort with different constituent elements and a distinct purpose to protect an individual’s private life in accordance with article 8 ECHR, regardless of the truth or falsity of the information, and it is therefore inappropriate to read across concepts from the tort of defamation.
Third, the Appellant submitted that information should not be protected because it referred to the Respondent’s business activities and not his private life. This is an unduly restrictive view of the protection afforded by article 8 ECHR, which can include professional or business activities. A person’s reputation is within the scope of their article 8 ECHR “private life”.
Fourth, the Appellant argued the courts below failed to apply the correct legal test at stage one, involving a consideration of “all the circumstances of the case”. The nature of the activity in which ZXC was engaged is not a factor of particular significance here. The courts below gave due consideration to the applicable Murray factors in their multi-factorial analysis, including the Respondent’s status as a businessman involved in the affairs of a large public company. Whilst the Respondent’s status might mean that the limits of acceptable criticism are wider than for a private individual, there is a limit. The factor is not in itself determinative and should only form part of the stage one analysis.
Therefore, the courts below were correct to hold that, as a legitimate starting point, a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation and that in all the circumstances this is a case in which that applies and there is such an expectation.
Issue 2: Whether the Court of Appeal was wrong to hold that, in a case in which a claim for breach of confidence was not pursued, the fact that the Appellant published information originating from a confidential law enforcement document rendered the information private and/or undermined the Appellant’s ability to rely on the public interest in its disclosure.
The judge was right to treat the Letter’s confidentiality as a relevant and important factor at both stage one and stage two but neither the judge nor the Court of Appeal held that the Letter’s confidentiality itself rendered the information private or prevented the Appellant from relying on the public interest on its disclosure. Whilst there is no necessary overlap between the distinct actions for misuse of private information and for breach of confidence, confidentiality and privacy will often overlap, and if information is confidential that is likely to support the reasonableness of an expectation of privacy.
Issue 3: Whether the Court of Appeal was wrong to uphold the findings of the first instance judge.
This ground of appeal was dependent upon establishing that the Court of Appeal erred in law on Issue 1 and/or Issue 2, which it has not done. Therefore, there are no grounds for intervening with the judge’s decision in relation to the balancing exercise.
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