None of Your Business: Supreme Court privacy judgment deals a blow to investigative journalism

February 28, 2022

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3 min read

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What's going on here?

Following Bloomberg’s loss in a privacy lawsuit, the British media is likely to face difficulties in reporting legal stories, even when they concern an individual being investigated in relation to their business.

What does this mean?

In 2016, a Bloomberg article named a businessman who was being investigated for a criminal charge on the basis of a confidential letter Bloomberg had obtained. In 2017, the businessman sued Bloomberg on the grounds that they had “misused private information”, and his claim had been strengthened by the fact that he was merely under enquiry and had not received a criminal charge at the time that the article was published. Six years later, the UK Supreme Court ruled in favour of the businessman, stating that an individual undergoing criminal investigation could still reasonably expect some degree of privacy. In publishing the article, Bloomberg was ruled to have violated his privacy under Article 8 of the European Convention of Human Rights (ECHR).

What's the big picture effect?

The current Supreme Court judgment is one amongst a series of judgments that focus on strengthening individuals’ privacy rights. For example, in 2018 the UK High Court found in favour of Cliff Richard, who alleged that the BBC’s coverage of his sexual assault allegations was a violation of his privacy. The Supreme Court’s judgment establishes that an individual has a right to not be identified by the media unless criminal charges are brought upon them, which has far-reaching implications for British media and practices in investigative journalism. The judgment comes as a relief to those undergoing criminal inquiries, as they no longer have to fear the reputational damage that results from a trial by media.

While such protection may have its benefits for those accused of personal crimes, the same cannot be said for those accused of commercial crimes. Bloomberg argued that a businessman’s commercial activities cannot be considered part of their private life and would thus not entitle them to ECHR protections. While privacy for those accused of white collar crimes may protect their reputations, it comes at the expense of stakeholders and consumers who will no longer be making informed commercial decisions. This is especially important when considering that a businessman’s reputation often heavily influences stock purchases of their company. However, Bloomberg’s argument was rejected by the Supreme Court, who justified their decision by saying that regardless of the nature of crime, an investigation could seriously impact an individual’s ability to interact with society. In addition, the court weighed up the losses to the businessman and an ordinary member of the public, eventually finding that the relevant businessman had more to lose from the revelation of a criminal enquiry than any other individual would.

The law has now evolved to protect the interests of businesspeople, and is increasingly blurring the lines between what constitutes part of an individual’s private and professional life. In making it tougher for reporters to tell certain stories, the UK compromises on the freedom of its press – often recognised as an essential feature of any democratic nation. Bloomberg has expressed their disappointment with the verdict, stating that it prevents journalists from performing the essential functions of “putting the conduct of companies and individuals under appropriate scrutiny and protecting the public from possible misconduct”

Report written by Megha Vinesh

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