We previously commented here on the unsettling judgment in ERY v Associated Newspapers  EWHC 2760 where the court allowed an injunction against the publication of a story about a wealthy businessman who had been interviewed under caution (likely) in connection with an ongoing investigation into his company. In what initially appears as a reversal of ERY, the High Court last week denied an injunction application in ZXC v Bloomberg LP  EWHC 328 (QB) based on a similar set of facts.
In December 2016 the Defendant published an article about ZXC’s company’s being under criminal investigation, a story which had been previously reported to various degrees over the previous 3 years with no attempt by the Claimant to prevent its publication. Towards the end of last year, a journalist from Bloomberg contacted the Claimant’s lawyer for comment on a further story about the Claimant’s connection to the investigation, but received no response so Bloomberg published the article on its website. A week after publication the Claimant’s solicitor wrote to Bloomberg alleging infringement of the Claimant’s privacy rights, and nine days later he finally issued his claim.
Although Garnham J’s judgment in ZXC is (as is always the case in privacy matters) fact specific, it nonetheless provides an often elusive indication of when a court will in fact deny an application for a privacy injunction, and sheds some light on the court’s troubling conclusion in ERY.
Privacy – Article 8 v Article 10
The Claimant’s case proceeded under two heads. The first was a strict privacy analysis, referring to Nicol J’s two step test in ERY: “[First] consider whether the Claimant’s right to private life in engaged…[then] consider whether in all the circumstances, the Claimant’s qualified right has to give way to some competing consideration.”
Here Garnham J found that it was likely that the Claimant would be able to establish that his Article 8 rights were engaged and enhanced by a variety of factors including that the Defendant obtained and relied upon a highly confidential law enforcement document that was leaked to the Defendant in breach of confidence. However, the court also considered factors that decreased the weight of the Claimant’s Article 8 rights in this instance, including the fact that the information was already in the public domain, the Claimant’s delay in responding to an opportunity to respond to the article or even to bring his application, and that the Claimant did not provide a witness statement with a statement of truth providing the damage caused to him and his family.
On the other side of the scale, the court considered the Defendant’s Article 10 free speech rights to be substantially enhanced by a number of factors including the substantive nature of the reporting, the lack of resistance from the law enforcement agency, and that publishing the Claimant’s name would add to the article’s credibility. The court also considered limited factors against the Defendant, but on balance the court held that the Defendant’s Article 10 rights “comfortably” outweighed the privacy rights of the Claimant.
The court spent a short time analysing the Claimant’s arguments for the injunction under section 10 of the Data Protection Act (DPA). There is no requirement for a reasonable expectation of privacy under the DPA , however the section 32(1) defence for journalists publishing private information in the public interest is robust. Section 32(1)(b) requires that the data controller (here Bloomberg) reasonably believes that publication is in the public interest. The court held that the Claimant could not possibly overcome a section 32 defence particularly in light of Bloomberg’s evidence of its careful consideration of the circumstances including the public interest in publishing the article. This point is worth noting and raises an important piece of advice we give to all our clients: always document the consideration you have given to the public interest merits of an article. Those notes will be key evidence in the event you have to defend publication.
What does this mean?
While on the one hand, ZXC provides a more reasoned consideration of the weight of free speech rights against the weight of privacy rights in criminal activities, we have to recognise the extent to which this case is distinguished on its facts from ERY. Here the Claimant’s delay and failure to respond, that the investigation was already public knowledge and that the Claimant here was the subject of an investigation as opposed to being question on caution could all point to its being of a piece with the ERY decision. However, to our minds, these facts under the ERY analysis could just as well have gone the other way, so we choose to be optimistic that ZXC is instead a course correction for privacy law, and not a continued trip down the rabbit hole.