The decision exposes media outlets in the UK to liability if they identify suspects prior to charge, but carries lesser implications elsewhere.
On 16 February 2022, the UK Supreme Court held that a suspect under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.
The decision has important implications on the extent to which the UK media can report on criminal investigations into individuals prior to the point of charge. Nevertheless, the often international nature of criminal investigations means that the practical impact of this decision may be more limited in situations in which information may still be published in other jurisdictions.
The case concerned a US citizen, referred to in the decision as “ZXC”, who was a senior executive at a then-publicly listed company. In 2016, a UK legal enforcement body (UKLEB) launched a criminal investigation against both ZXC and the company.
A media outlet published an article in 2016 about the UKLEB’s investigation, using details obtained from a confidential Letter of Request that UKLEB sent to a foreign state, seeking legal assistance in relation to ZXC.
ZXC successfully claimed before a first instance judge in 2019 that the media outlet misused his private information, and the Court of Appeal upheld that decision a year later. The case was then taken up to the Supreme Court.
The Supreme Court’s Decision
The Supreme Court unanimously dismissed the appeal, affirming the principle that an individual under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation. It held that:
- ZXC’s Article 8 European Court of Human Rights (ECHR) privacy rights prevailed over the media appellant’s Article 10 ECHR right to freedom of expression.
- Revealing the fact that a suspect is under criminal investigation will ordinarily affect a suspect’s reputation and private life, including their ability to establish and maintain personal relationships with others.
- Revealing the existence of a criminal inquiry into a suspect would ordinarily be more damaging to a businessman actively involved in the affairs of a large public company than to a private individual.
- The principle applies prior to charge; after charge, the open justice principle generally means the information is essentially public.
The ruling means that publishing the names and details of individuals and businesses who are suspected of criminal activity or arrested is unlawful in the absence of a good reason why the principle should not apply, or unless the right to freedom of expression outweighs the right to privacy. Identifying suspects prior to the point of charge could expose media outlets to liability for misuse of private information claims.
The decision has particular implications for those suspected of corporate wrongdoing but not subsequently charged or convicted. Possible reputational damage through publicity during ongoing investigations is often a significant concern, both for the individuals involved and for the boards of the companies affected. Interestingly, despite the UK’s departure from the European Union, the ruling moves the UK closer to the privacy regimes common in Europe (e.g., Germany), which allow criminal suspects to remain anonymous in the press until conviction.
Despite the significance of the decision in the UK, the potential restrictions on reporting might not be so straightforward beyond the UK’s borders. The often international nature of criminal investigations requires law enforcement bodies in different jurisdictions to coordinate with one another, as happened in this case. Other countries, such as the US, impose less stringent reporting restrictions, while controlling publication on social media platforms remains difficult. These factors create a real risk that details of an investigation could become public. Although this case provides a helpful assertion of an individual’s right to privacy, its real-world implications should not be overstated.
This post was prepared with the assistance of Abdulla Zaman in the London office of Latham & Watkins.