ZXC v Bloomberg LP

Bloomberg LP, an online news organisation, published on its website, www.bloomberg.com, an article by one of its journalists. The article referred to the Claimant and indicated that he, amongst others, were being investigated. By this present application the Claimant, (who is known in these proceedings as “ZXC”), seeks an order from the court that the information relating to him in the article be taken down from the website.

On 9 January 2017, Mr Justice Andrew Baker, sitting as the vacation Judge, declined to grant injunctive relief pending the hearing of the application subsequently listed before me. However, that same day he had heard in private an application that he should hear the matter before him in private. Applying CPR 39.2(3)(a), (c) and (g), he ruled that it was strictly necessary for the hearing before him to be in private. He also ordered that the Claimant be permitted to issue the proceedings in the name “ZXC”. Finally, for present purposes, he adjourned the hearing of the application until 2 February 2017.

Before me, on 2 February 2017, Mr Tim Owen QC for the Claimant invited me to direct that the application be heard in private. Mr Gavin Millar QC for the Defendant opposed that application.

In a short ruling at the beginning of the day, I directed that the hearing should indeed remain in private before me and I heard all arguments that day in private. I indicated that I was of the view that it was strictly necessary in the interests of justice to have the hearing in private for much the same reasons as those articulated by Andrew Baker J in paragraphs 4-6 of his ex tempore judgment of 9 January.

In considering this issue I have kept in the forefront of my mind the general rule set out in CPR 39.2 that a hearing is to be in public. I have also had regard to article 6 of the ECHR which permits the exclusion of press and public from a trial, inter alia, “to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”.

In my view, it would defeat the purpose and object of the application for an order that the article be taken down if the argument in this case could be reported openly. It is the Claimant’s case that the article on the Bloomberg site has not been widely distributed or reproduced to date and that the distress and damage he has suffered by reason of its publication can significantly be diminished by an order requiring the article to be withdrawn. To consider that application in a forum that could be reported and published widely would make the application entirely pointless. Making the application would be likely to do more harm than good from the Claimant’s point of view.

In 2013, a law enforcement agency announced the start of a criminal investigation into a company. The Defendants and other media outlets reported this development, noting that the law enforcement agency was focusing on “allegations of fraud, bribery and corruption relating to the activities of the company or its subsidiaries”.

The law enforcement agency investigation has continued, as has the press reporting of that investigation. In November 2015 the Financial Times reported that the law enforcement agency had discontinued its investigation in certain respects.

In mid/late 2016 the Defendants published an article about the Claimant in connection with the investigation. No attempt was made by the Claimant to prevent the publication of that article.

In late 2016 one of the Defendant’s journalists emailed Mr Byrne, the Claimant’s solicitor. She told him that a colleague of hers was writing a story about the investigation into the company. Mr Byrne did not reply. The journalist emailed again the following day indicating that if she did not hear back from him that morning, Bloomberg would assume that he did not want to comment.

In late 2016 Bloomberg published on its website the article under challenge in these proceedings.

The day after publication the Claimant’s solicitor wrote to the law enforcement agency. They referred to the first article and then explained that “at the end of last week” they had been approached by the same reporter who had indicated that a colleague of hers was writing a further story based upon a formal law enforcement document. They explained that the article had then been published and expressed the Claimant’s “considerable concern about the leaks in this case”. They asked whether the law enforcement agency were investigating the leaks.

The law enforcement agency replied the following day, referring to the Bloomberg article “which relates to our confidential” law enforcement document. The law enforcement agency denied that they had leaked information relating to the Claimant. Correspondence between the Claimant’s solicitors and the law enforcement agency continued, ending three days later with a letter from the law enforcement agency indicating that they were confident that there had been no leak of information from their offices and that the issue was a matter for the Claimant.

Five days later the Claimant’s solicitors wrote to Bloomberg putting them on notice of the breach of “our client’s rights in privacy, confidence and the Date Protection Act 1998 caused by Bloomberg’s publication” of the article.

Bloomberg replied by letter from their general counsel, Mr Paul Ferguson. That letter included the following:

“The DPA’s journalistic exemption (section 32 DPA 1998) clearly applies to, and protects, Bloomberg News’ reporting in the article. The information about [the Claimant] was processed exclusively for journalism. It was published with the reasonable belief that the publication would be in the public interest and that non-disclosure of any person data would be incompatible with Bloomberg News’ journalistic purposes. Specifically the criminal investigation into [the company] has been of great interest to the public since it was announced by the [law enforcement agency] in 2013. The reporting contained in the article is strongly in the public interest and the fact that [the Claimant] is being investigated should not come as a surprise to either [the Claimant] or anyone else who has followed the extensive news coverage of the [law enforcement agency] investigation into [the company] …..”

Bloomberg declined the request from Byrne and partners to take down the article or to provide an undertaking. These proceedings followed.

I had the benefit of detailed written and oral arguments from Mr Tim Owen QC and Ms Sara Mansoori, for the Claimant, and Mr Gavin Millar QC, for the Defendant. A short summary here will not do justice to their arguments on misuse of private information but puts the discussion which follows in context. (I deal with the arguments on the Data Protection Act in the part of the discussion section dealing with that issue.)

The Claimant seeks an interim injunction pending trial requiring the removal of the article, or alternatively removal of those parts of the article that refer to him, based on what he says is misuse of private information. He refers in particular to the judgment of Nicol J in ERY v Associated Newspapers [2016] EWHC 2760.

He contends that he has a reasonable expectation of privacy in respect of the law enforcement agency’s investigation and that the law enforcement documents are highly confidential. He refers in this regard to the Home Office publication in support of this. He says there is no public interest in publishing highly confidential, leaked information about “an ongoing criminal investigation into” him. But, he says, even if there were, it could not outweigh his Art 8 rights. Relying on PJS v News Group Newspapers Ltd [2016] AC 1081 at paragraph 58, he argues that the fact that information has been published does not prevent the grant of an interim injunction to prevent further intrusion into an individual’s private and family life.

In response, Mr Millar QC for Bloomberg, says that requiring them to take down the article would affect their right to freedom of expression and that, accordingly, s12 (3) and (4) of the Human Rights Act 1998 apply. He says that the Claimant must establish that he is likely to succeed at trial, and he has no realistic prospect of doing so.

Bloomberg argue that there is no reasonable expectation of privacy in the parts of the article which identify the Claimant and that he is unlikely to establish any Art 8 right in the information. They say that, even if he could show there was a reasonable expectation of privacy, the harm done to the Claimant through the article remaining on the website is negligible. They point out that the Claimant has provided no witness statement in support of this application, and his solicitors statement suggests that the only harm suffered is stress additional to that inevitably experienced as a result of the investigation

Mr Millar argues that the contents of the article have already been widely available to the public. He points to the fact that Bloomberg has 300,000 subscribers and there is open access to this article on their website. He says the article has been, in substance reproduced by others publishers, around the world.

The Defendants contend that there is a strong public interest in the continued publication of the article and that making an order here would be a disproportionate interference with free expression. They say that even if the Claimant could demonstrate that Art 8 was engaged, the Claimant’s interest would not outweigh the Art 10 interests in publication.

It is common ground that s12 of the Human Rights Act applies here and that its effect on the test for establishing a right to an interim injunction is as explained by the House of Lords in Cream Holdings v Banerjee [2005] 1 AC 253: save where the damage is imminent or the adverse consequences of publication would be especially serious, the Court has to consider whether the Claimant would be “likely” to succeed in restraining publication at trial, or, on the facts of the present case, succeed in his application for an order that the article be taken off the website.

Both parties refer to the helpful summary of the principles to be applied in applications for injunctions founded on allegations of misuse of private information in the judgment of Nicol J in ERY, which I gratefully adopt here.

“44 Although this tort had its origin in remedies for breach of confidence it has outgrown those confines under the influence of Article 8 of the ECHR. A court considering such a claim does so in two stages: the first is to consider whether the Claimant's right to a private life is engaged; the second stage is to consider whether, in all the circumstances, the Claimant's qualified right has to give way to some competing consideration.

45 So far as the first stage is concerned the inquiry is whether the Claimant has a reasonable expectation of privacy in the matter in question – see Campbell v MGN Ltd [2004] 2 AC 457 .

46 So far as the second question is concerned, in many cases (like the present one) the Court has to balance the Article 8 right of the Claimant with the Article 10 right of the Defendant. In conducting that balance, the court has to apply an intense focus to the particular facts and rights being claimed – In Re S (A Child) [2005] 1 AC 593 . Despite what might at first appear to be the case from s.12(4) of the Human Rights Act 1998 , neither of these provisions has any presumptive primacy – In Re S (A Child) above and PJS v News Group Newspapers Ltd [2016] 2 WLR 1253 SC .

47 In carrying out the balancing exercise, the Court must be alive to any Article 8 interests of others, particularly children - see PJS (above) and K v News Group Newspapers Ltd [2011] 1 WLR 1827 CA .

48 The role and importance of the press in a democracy as a 'public watchdog' has been reiterated on numerous occasions by the Strasbourg and domestic courts.

49 The second stage may also require investigation of the extent to which publication of the material in question would be in the public interest. The authorities make that clear and so, too, does s.12(4)(a)(ii) of the 1998 Act.”

The first question for me, therefore, is whether the Claimant is likely at trial to establish that he had a reasonable expectation of privacy in the contents of the formal document sent by the law enforcement agency.

The focus of the inquiry at that first stage is on the circumstances of the Claimant. As set out by Sir Anthony Clarke MR in Murray v Express Newspapers [2009] Ch 481 at paragraph 35 of his judgment, the test is objective: “what a reasonable person of ordinary sensibilities would feel if she were placed in the same position as the Claimant and faced the same publicity”.

Whether that test is met is answered by considering all the circumstances of the case. In Murray, the Master of the Rolls went on to identify what those circumstances might include:

“They include the attributes of the Claimant, the nature of the activity in which the Claimant was engaged, the place at which it was happening, the nature and purpose of the intrusion, the absence of consent and whether it was known or could be inferred, the effect on the Claimant and the circumstances in which and the purposes for which the information came into the hands of the publisher.”

In ERY, Nicol J found that there was a reasonable expectation of privacy in the fact that the Claimant was being investigated by the police (see paragraph 65 of his judgment). But, as Mr Millar correctly submits, he reached that conclusion, in part, on the foundation provided by a concession by the Defendants in that case that the Claimant had a reasonable expectation of privacy in the fact that he has been interviewed under caution. Mr Millar made no such concession here. In those circumstances, in my view, Nicol J’s conclusion in ERY provides only weak support for the proposition that this Claimant had a reasonable expectation of privacy.

Mr Millar submits that, in the absence of the sort of concession made by the Defendant in ERY, there cannot be a reasonable expectation of privacy on the part of a suspect in the information that he is being investigated by the police or other state law enforcement agency carrying out its public function. I reject that submission. In my judgment it is impossible to lay down any such blanket rule in an enquiry as fact-sensitive as this.

In fact, I would go further. As Mr Owen submits, the right to respect for private life has two core components; unwanted access to private information and unwanted access to, or intrusion into, one’s personal space. In Goodwin v NGN Ltd [2011] EMLR 27 at paragraph 85, Tugendhat J described these as the confidentiality component and the intrusion component. In my view, the information extracted from the formal law enforcement document is undoubtedly “private”, given that no party to it, has suggested that they wanted it made public, and its subject, the Claimant, strongly objects to that happening.

In PNN v Times Newspapers Ltd [2014] EMLR 30 the appellant appealed against the refusal to grant an interim non-disclosure order against the respondent publishers. In the course of her judgment dismissing the appeal, Sharpe LJ, with whom the other members of the court agreed, said (at paragraph 41-42) that counsel for the Appellant:

“has also drawn our attention to some recent material, which considers whether the police should publish the name of someone who has simply been arrested. I accept this material provides some support for the proposition that there should be a more careful consideration of such a person's rights than there might have been in the past: see for example, the Judicial Response to Law Commission's Consultation Paper on Contempt of Court at paragraph 5 (written by the judge and Treacy LJ) and the 2013 College of Policing Guidance on Relations with the Media, where it is said that consideration must be given to an individual's right to respect for a private and family life, the right of publishers to freedom of expression and the right of Defendants to a fair trial. The Guidance goes on to say that save in clearly identified circumstances the names or identifying details of those who are arrested or suspected of crime should not be released by police forces to the press or the public.

42 The appellant is not, however, someone who has simply been arrested. The fact of his arrest and other associated information has been extensively referred to in open court, including in public rulings given at the criminal trial, and the respondents want to report this. It was this which gave rise to the many factors bearing on the rights engaged which the judge correctly identified and carefully considered.”

Nicol J made reference to that passage, and to the material to which Sharpe LJ referred, in his decision in ERY. I do not repeat the detailed reference to that material here.

The “careful consideration” called for by Sharpe LJ leads me to identify the following features of the present case as being relevant to the question whether the Claimant had a reasonable expectation of privacy in the fact that he was being investigated by the law enforcement agency, more particularly, the fact that he is the subject of the formal law enforcement document. He is a business man, not a celebrity courting publicity; the formal law enforcement document was a highly confidential; the contents of it had, it seems, been “leaked” to the Defendants in breach of confidence; the article concerns the details of investigations by the law enforcement agency that have not been concluded or made public by the law enforcement agency; the Claimant had never been arrested; he was not being questioned in a public place; and he did not consent to the publication of the information contained in the article.

Those features lead me to conclude that the Claimant would, entirely reasonably, have expected that the information contained in the formal law enforcement document would remain private to the law enforcement agency and the other party receiving it. I find, without great hesitation, that the Claimant would be likely, at trial, to establish that he satisfied the first stage of the test identified in ERY. The fact that he is the subject of the formal law enforcement document is an aspect of the Claimant’s private life and he would, in my view, be able to show that his Art 8 rights are engaged by the continued presence of this article on the Defendant’s website.

The second stage of the process identified in ERY necessitates balancing the Article 8 right of the Claimant with the Art 10 right of the Defendant to publish, and to continue to publish on its website, the article. In A v B plc [2003] 3 WLR 542, Lord Woolf CJ observed at para 6:

“There is a tension between the two articles which requires the court to hold the balance between the conflicting interests they are designed to protect. This is not an easy task but it can be achieved by the courts if, when holding the balance, they attach proper weight to the important rights which both articles are designed to protect. Each article is qualified expressly in a way which allows the interests under the other article to be taken into account.”

In my judgment, that task involves not just identification of the factors which establish that each convention right is in play, but also close consideration of the factors which serve to accentuate or reduce the weight to be attached to each right. In a very different context, extradition, Lord Thomas, the Lord Chief Justice, said this in Poland v Celinski [2015] EWHC 1274 (Admin):

“15 As we have indicated, it is important in our view that judges hearing cases where reliance is placed on Article 8 adopt an approach which clearly sets out an analysis of the facts as found and contains in succinct and clear terms adequate reasoning for the conclusion arrived at by balancing the necessary considerations. ”

16 The approach should be one where the judge, after finding the facts, ordinarily sets out each of the “pros” and “cons” in what has aptly been described as a “balance sheet” in some of the cases concerning issues of Article 8 which have arisen in the context of care order or adoption: see the cases cited at paragraphs 30 to 44 of Re B-S (Adoption: Application of s.47(5)) [2013] EWCA Civ 1146 . The judge should then, having set out the “pros” and “cons” in the “balance sheet” approach, set out his reasoned conclusions ...”

There is, it seems to me, a valuable discipline in cases such as the present in setting out the competing factors that strengthen and weaken the relevant considerations, on each side of the equation.

I have set out above the principle factors which have led me to conclude that the Claimant’s Art 8 rights are engaged. The weight to be attached to those factors is increased to some degree by the evidence, in the form of the contents of the Particulars of Claim supported by a statement of truth signed by the Claimant’s solicitor on his behalf, that as a result of the publication of the article, the claimant has suffered substantial distress, stress and anxiety. That damage is particularised in paragraph 13 of the particulars of Claim; I note in particular the Claimants concern about the effect of the article on his reputation, his wife’s distress; and the fact that “his children are upset by the continuing online publication”.

In my judgment, however, the weight to be attached to the breaches of Article 8 alleged fall to be reduced by a number of factors.

First, there was no attempt by the Claimant to restrain publication of the first article. On the contrary, the Claimant’s solicitor spoke to the author of that article with a view to putting the Claimant’s stance on the record. Although the first article did not reveal the detail contained in the article complained of, it did record that the Claimant had recently spoken to the investigators.

Second, there was already information in the public domain, put there by the other news organisations, about the fact that the Claimant was being investigated by the law enforcement agency

Third, it was some nine days before the Claimant indicated objection to the article. During that time the article would undoubtedly have been widely read on line. It was also reproduced by other news organisations.

Fourth, there was undoubtedly stress and anxiety caused to the Claimant and his family by the fact that he is the subject of the investigation by the law enforcement agency at all, and by the fact of the initial publication in 2016; it is only the additional stress caused by the fact that the article remains available online that can fall on his side of the balance in these proceedings.

Fifth, the Claimant has filed no witness statements of his own giving any detail as to the effects on him or his family of the continued presence of the article on the Defendants’ website; he has been content to rely simply on the statement of truth signed by his solicitor in the Particulars of Claim to which I have referred above.

Sixth, the article does not suggest that the Claimant is guilty of any offence; only that he is being investigated. That, in my view, is a particularly significant consideration when weighing up the effect of the Art 8 breach. In Guardian News and Media [2010] 2 AC 697 Lord Roger said (at paragraph 66),

“the law proceeds on the basis that most members of the public understand that, even when charged with an offence, you are innocent unless and until proved guilty in a court of law. That understanding can be expected to apply, a fortiori, if you are someone whom the prosecuting authorities are not even in a position to charge with an offence and bring to court.”

On the Defendant’s side of the balance, the weight to be attached to the Defendants’ Art 10 rights here seems to me to be substantial.

First, this was not some salacious, “kiss and tell”, piece of journalism where, as is sometimes the case, the interest of the public in the story is in inverse proportion to the “public interest” properly understood. This article constituted a serious piece of journalism about a serious topic; a law enforcement investigation into offences of bribery, fraud and corruption. The offences being investigated were alleged to have been committed by, or on behalf of, companies with involvement of their senior officers. It may be that the publicity produced by this article might encourage other witnesses to come forward to assist the investigation.

Second, the article here prompted no adverse reaction from the investigators concerned. It appears that the law enforcement agency had no fears that the reporting was damaging the investigation. Had this application been made, or supported, by the law enforcement agency, the outcome may have been very different.

Third, the Defendants are entitled to assert that the inclusion of the Claimant’s name in the piece is a legitimate journalistic decision. It not only adds colour and texture to the story but it is also directly relevant to the credibility of the analysis contained in the article. In re BBC [2010] 1 AC 145 at paragraph 25, Lord Hope said:

“The freedom of the press to exercise its own judgment in the presentation of journalistic material has been emphasised by the Strasbourg court. In Jersild v Denmark (1994) 19 EHRR 1 , the court said, at para 31, that it was not for it, nor for the national courts for that matter, to substitute their own views for those of the press as to what technique of reporting should be adopted by journalists. It recalled that article 10 protects not only the substance of the ideas and the information expressed but also the form in which they are conveyed. In essence article 10 leaves it for journalists to decide what details it is necessary to reproduce to ensure credibility: see Fressoz and Roire v France (1999) 31 EHRR 28 , para 54. So the BBC are entitled to say that the question whether D's identity needs to be disclosed to give weight to the message that the programme is intended to convey is for them to judge.”

The weight to be attributed to the factors on the Defendants side of the scales does fall to be reduced somewhat, in my judgment, by two matters. First, the Defendants were making public highly confidential information contained in a formal law enforcement document. The public interest in preserving the confidentiality of such documents is very real. Second, this was not “whistleblowing” journalism. The Defendants were not revealing wrongdoing that might otherwise go undetected. The critical part of the article related to the process being adopted by the appropriate investigator to its investigation.

In my judgment, however, even making allowances for those considerations, the weight to be attached to the Defendant’s art 10 rights here comfortably outweigh the Claimant’s article 8 rights. In those circumstances, the claim based on Art 8 and the Claimant’s expectation of privacy must fail.

Ms Mansoori, for the Claimant, argues that the Claimant has a right to removal of the article under s10 of the Data Protection Act (“DPA”) 1998. She says the Claimant gave the Defendants appropriate notice, in his solicitors letter of 14 December 2016, and required the Defendants to cease processing the relevant data by taking down the article but this has not been done. She says the continued hosting of the article on the Defendants website constitutes continued processing of data for which the Defendants have no consent.

Ms Mansoori argues, and this is not contested, that there is no need for a reasonable expectation of privacy or a breach of Art 8 to make good a claim under the DPA.

She argues that the Defendants cannot rely on the s32 exemption under the 1998 Act because they could have had no reasonable belief that publication of the article was in the public interest. She says the article referred to unproven allegations in respect of which no charge had been brought. She says the underlying document, was highly confidential. She points out that the source of the information is not identified in the article, presumably because he or she was acting in breach of confidence. She says the source was not a whistle-blower.

The Defendants’ response to this argument is shortly expressed. Mr Millar argue that there is no realistic prospect of the DPA claim succeeding because Bloomberg are entitled to rely on the defence provided by s32 of the Act; they reasonably believed that publication would be in the public interest.

In my judgment, against the background of what I have said above about the nature of the Defendants’ rights to freedom of expression on the facts of this case, this head of claim cannot succeed.

S32 (1) of the DPA provides:

“(1)

Personal data which are processed only for the special purposes are exempt from any provision to which this subsection relates if—”

(a)

the processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material,

(b)

the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest, and

(c)

the data controller reasonably believes that, in all the circumstances, compliance with that provision is incompatible with the special purposes.”

The Defendants rely on the witness statement of the author of the article. That statement, and in particular paragraph 16 of its confidential exhibit, makes it clear that the decision to refer to the Claimant in the article was taken after careful consideration of the relevant circumstances, including the public interest in the disclosure of the Claimants involvement. In my judgment, it is clear that the Defendant as data controller believed, and believed on reasonable grounds, that publication would be in the public interest.

In my judgment, the Claimant cannot show that he is likely to succeed in overcoming that defence.

In those circumstances, this application must be rejected.

The Claimant has intimated an intention to appeal my order refusing relief. I have accordingly produced this judgment in two forms; first this form, which can be made public without prejudicing that appeal. Second an “in private form” which will remain confidential to the parties at least until the application for permission to appeal and any subsequent appeal is disposed of.