knowledge 26 May 2020 |

Do Those under Investigation by Law Enforcement Agencies have a Reasonable Expectation of Privacy?

The proceedings arose as a result of a criminal investigation led by a UK Law enforcement body (“UKLEB”) in 2013 into the integrity of various transactions of a company, X Ltd.¹ The claimant ZXC was the Chief Executive of one of X Ltd's regional divisions.  Details of the continuing investigation were reported in the media.  In 2016, Bloomberg published two articles naming ZXC in connection with the investigation, one of which was based on a confidential letter of request for mutual legal assistance from the UKLEB to a foreign country, which identified both X Ltd and ZXC.  

Bloomberg refused a request by ZXC’s solicitors to take down the articles and ZXC sought an interim injunction alleging misuse of private information.  That application was dismissed in the High Court, which determined that the weight attaching to Bloomberg’s ECHR Article 10 rights (Freedom of expression) outweighed ZXC’s Article 8 rights (Right to respect for private and family life).²  ZXC pursued a claim for damages and a final injunction to full trial and judgment was granted in April 2019, with Mr Justice Nicklin awarding damages of £25,000 for the infringement of privacy rights and granting an injunction restraining Bloomberg from publishing any further information identifying the claimant as the subject of a criminal investigation.³

Bloomberg appealed.  The primary question was whether, and to what extent, a person can have a reasonable expectation of privacy in relation to information that relates to a criminal investigation into his or her activities.    

The Court of Appeal dismissed Bloomberg’s appeal, holding that “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 court warned that the fundamental legal principle of innocence until proof of guilt must not be overlooked.

The question of whether individuals being investigated by law enforcement agencies in England and Wales had a reasonable expectation of privacy had been in dispute since an earlier English decision of Hannon v News Group Newspapers Ltd.⁴  The Court of Appeal has now made it clear that law enforcement investigations are processes in respect of which there is a legitimate expectation of privacy and that there is no ‘hierarchy of offences’, with all criminal investigations deemed to be prima facie private. 

The general principle confirmed by the Court of Appeal does not mean that the media cannot report on criminal investigations. What it does establish is a presumption of privacy which can be displaced by public interest considerations.

Privacy law in Ireland differs from that in England and Wales.  Prior to the enactment of the Human Rights Act 1998 there was no recognised right to privacy under the law of that jurisdiction, whereas privacy had long been recognised in Ireland as unenumerated constitutional right.  In practice, the Irish courts draw a distinction between intrusive conduct amounting to a breach of privacy, in respect of which there is a balancing exercise as between the privacy rights and the public interest; and information or situations which are inherently private, where there is no balancing exercise, as there is no public interest in the publication of inherently private information.  In the words of Mr Justice Peart in Nolan v Sunday Newspapers Ltd:

“There is about every person, be they a public figure or not, a carapace of privacy, recognised and protected by law, which protects a private space within which a person's life may be lived without unwanted intrusion by others, including the media, and without fear that elements of that life that are within that private space will without their consent be exposed to public view for some commercial purpose such as the curiosity and gratification of a voyeuristic readership or other audience.”⁵

It has been confirmed that the constitutional right to privacy does extend to business affairs⁶ but that “such right can only exist at the outer reaches of and the furthest remove from the core personal right to privacy”.⁷  Privacy actions are highly fact dependent but an Irish court would likely regard a criminal investigation as an inherently private scenario giving rise to privacy rights, and whether the court would weigh the public interest against the privacy rights would depend on the underlying facts and whether the claim arose from intrusive conduct.

The Media Defence Group at McCann FitzGerald is available to answer any queries you may have in relation to this briefing. Alternatively, your usual contact at McCann FitzGerald would be pleased to provide further information.