Introduction
In Bloomberg LP v ZXC [2022] UKSC 5, the Supreme Court unanimously held that a person under criminal investigation by a public body who has not been charged has, as a starting point, a reasonable expectation of privacy in respect of information relating to that investigation. The decision crystallised a principle that had been developing incrementally through the lower courts, but its elevation to a general rule of law by the highest domestic court has attracted significant criticism. The central objection, encapsulated in the essay question, is that the decision tilts the balance between Article 8 and Article 10 of the European Convention on Human Rights (ECHR) too heavily in favour of privacy, thereby curtailing legitimate press reporting on matters of genuine public interest—including corporate crime, regulatory enforcement, and the accountability of powerful individuals.
This essay argues that, while Bloomberg does restrict the scope of pre-charge reporting to a degree that warrants careful scrutiny, the criticism that it extends the reasonable expectation of privacy “too far” overstates the decision’s actual doctrinal effect. The ruling establishes a rebuttable presumption, not an absolute prohibition; it does not alter the ultimate balancing exercise under Re S (A Child) [2004] UKHL 47; and it responds to a genuine and well-documented harm—the reputational destruction of persons who may never be charged. Nevertheless, the decision does create real risks. Its treatment of legitimate public interest is insufficiently granular, it undervalues the press’s role in scrutinising the investigative conduct of public bodies, and its practical effect may insulate corporate wrongdoing from timely exposure. The stronger position is that Bloomberg is defensible as a starting-point rule but requires robust judicial application of the balancing exercise to prevent the presumption from hardening into a near-absolute barrier to pre-charge reporting.
The Factual and Procedural Background
The claimant, referred to as ZXC, was a United States citizen and a director and officer of a publicly listed company. The United Kingdom’s Serious Fraud Office (SFO) had opened a criminal investigation into suspected corruption relating to the company’s overseas operations. Bloomberg LP published an article that included detailed information drawn from a confidential Letter of Request (LOR) sent by the SFO to a foreign government. The article identified ZXC by name and summarised the substance of the allegations against him. At the time of publication, ZXC had not been arrested or charged (Lord Hamblen and Lord Stephens, delivering the unanimous judgment, at [1]–[6]).
ZXC brought a claim for misuse of private information. The High Court found that he had a reasonable expectation of privacy in the information and that Bloomberg’s Article 10 rights did not outweigh the interference with his Article 8 rights: ZXC v Bloomberg LP [2019] EWHC 970 (QB). The Court of Appeal upheld the decision: Bloomberg LP v ZXC [2020] EWCA Civ 611. The Supreme Court dismissed Bloomberg’s further appeal.
The Supreme Court’s Reasoning: Establishing a General Rule
The doctrinal significance of Bloomberg lies not in the outcome on its facts—which was broadly consistent with existing authority—but in the Supreme Court’s willingness to formulate a general proposition. Lord Hamblen and Lord Stephens stated that “in general, a person who is under criminal investigation has, prior to being charged, a reasonable expectation of privacy in relation to information relating to that investigation” ([64]). This elevated what had been an observable pattern in the lower courts—seen in cases such as ERY v Associated Newspapers Ltd [2016] EWHC 2760 (QB) and Richard v BBC [2018] EWHC 1837 (Ch)—into a clear rule of law.
The Court drew upon several sources in support. First, it relied on the Strasbourg jurisprudence, particularly the European Court of Human Rights’ emphasis in Axel Springer AG v Germany (2012) 55 EHRR 6 on the distinction between suspects and convicted persons, and the general principle that the presumption of innocence extends protective force to those not yet charged. Second, the Court invoked domestic data protection norms, noting that information relating to criminal investigations constitutes sensitive personal data under the data protection regime, reflecting Parliament’s recognition that such information engages serious privacy interests ([44]–[50]). Third, the Court relied on the cumulative weight of lower court decisions, treating them as evidence of a settled understanding ([55]–[63]).
Crucially, the Court emphasised that this was a starting point, not a determinative conclusion. The reasonable expectation of privacy establishes that Article 8 is engaged, triggering the necessity for a balancing exercise against Article 10 under the Re S methodology. The presumption is rebuttable: in an individual case, the balance may favour publication. However, the practical effect is that the onus shifts: a publisher must demonstrate that countervailing Article 10 considerations outweigh the suspect’s privacy interest, rather than the suspect needing to establish that privacy is engaged at all.
The Case for the Proposition: Privacy Extended Too Far
Undermining press scrutiny of law enforcement and corporate conduct
The most forceful criticism of Bloomberg is that it inhibits the press’s ability to report on matters of significant public interest during the period when such reporting is most valuable. Criminal investigations into serious fraud, corruption and corporate malfeasance are paradigmatic matters of public concern. The press’s role in bringing such investigations to public attention serves multiple functions: it enables scrutiny of whether enforcement bodies are acting effectively and lawfully, it alerts shareholders and the market to potential risks, and it contributes to the broader deterrent function of the criminal justice system. As Phillipson has argued in the context of privacy and press freedom, the media’s watchdog function under Article 10 is most important precisely where powerful actors seek to suppress information about their conduct (Phillipson, 2003).
The Bloomberg presumption risks creating a temporal gap—from the commencement of an investigation until the point of charge—during which reporting on serious suspected wrongdoing is presumptively restricted. This gap may be particularly significant in cases investigated by the SFO, where investigations are often lengthy and complex, sometimes spanning several years. During this period, the suspect may continue to occupy positions of corporate power, and investors, regulators and the public may remain unaware of the investigation’s existence. The practical consequence is that the presumption protects precisely those individuals—directors of major companies, politically connected figures—whose conduct most warrants public scrutiny.
Moreham, a leading privacy scholar, has acknowledged that the misuse of private information tort must be sensitive to the competing weight of press freedom, particularly where information relates to conduct rather than purely personal matters (Moreham, 2015). The difficulty with Bloomberg is that by establishing a general rule at the threshold stage—the reasonable expectation of privacy—it risks front-loading the analysis in favour of privacy before the full weight of the public interest has been assessed. Although the Court insisted that the balancing exercise remains open, the practical and psychological effect of a Supreme Court presumption should not be underestimated: media organisations may be deterred from publishing, and lower courts may treat the presumption as carrying significant inertial force in the ultimate balance.
The breadth of the presumption: information “relating to” the investigation
A further difficulty is the breadth of the category of protected information. The Court held that the reasonable expectation of privacy extends to “information relating to” the criminal investigation ([64]). This formulation is expansive. It encompasses not only the identity of the suspect and the details of the suspected offence, but also the investigative steps taken by the public body, the content of formal documents such as Letters of Request, and potentially any factual material gathered in the course of the investigation. As Wragg has observed, the breadth of the informational category matters because it determines the scope of the restriction on Article 10 rights (Wragg, 2015). A narrow category—for instance, limited to the suspect’s identity—would leave the press free to report on the conduct under investigation without naming the individual. A broad category risks suppressing reporting on the underlying facts altogether.
On the facts of Bloomberg itself, the information published included detailed content from a confidential LOR, which arguably engaged additional considerations of law enforcement confidentiality. But the general rule as formulated is not limited to leaked confidential documents; it extends to any information “relating to” the investigation, regardless of how the publisher obtained it. This breadth is difficult to reconcile with the principle, recognised by the Strasbourg Court in Magyar Helsinki Bizottság v Hungary [2016] ECHR 975, that the right to receive and impart information under Article 10 includes a right of access to information held by public bodies in certain circumstances, particularly where the information contributes to public debate on matters of public interest.
The chilling effect on investigative journalism
The practical consequence of Bloomberg, critics contend, is a chilling effect on investigative journalism. Media organisations, facing the prospect of damages claims and injunctions if they report on the existence or details of a criminal investigation before charges are laid, may choose not to publish even where the public interest in the information is substantial. This concern was articulated forcefully by the Media Lawyers Association in its intervention before the Supreme Court, and it resonates with the broader scholarship on the chilling effect of privacy law on press freedom (Descheemaeker, 2019). The chilling effect is compounded by the economics of media litigation: an individual corporation or wealthy suspect may have far greater resources to litigate than a news organisation, and the asymmetry of litigation risk further deters publication.
Moreover, the presumption applies regardless of the seriousness of the suspected offence. A person under investigation for large-scale international bribery benefits from the same starting-point presumption as a person investigated for a minor regulatory infringement. The failure to distinguish between categories of suspected wrongdoing means that the presumption operates with a bluntness that is difficult to justify in terms of the proportionality analysis required by the ECHR framework.
The Case Against the Proposition: A Proportionate and Defensible Rule
The genuine harm of pre-charge publicity
The strongest justification for the Bloomberg presumption is the well-documented harm caused by pre-charge publicity. Being publicly identified as the subject of a criminal investigation causes serious and often irreversible reputational damage, regardless of whether charges ultimately follow. The High Court’s decision in Richard v BBC [2018] EWHC 1837 (Ch), in which Sir Cliff Richard successfully sued the BBC for broadcasting live coverage of a police search of his home in connection with allegations of historic sexual offences for which he was never charged, vividly illustrates the severity of this harm. Mann J found that the broadcast had caused Sir Cliff Richard serious distress and reputational injury, and that the public interest in reporting the search at the time it occurred did not outweigh the interference with his privacy.
The presumption of innocence, while technically a procedural protection within criminal proceedings, has a broader normative dimension that the Supreme Court in Bloomberg was entitled to take into account. Article 6(2) ECHR protects the right to be presumed innocent until proved guilty according to law. The Strasbourg Court has recognised that this principle is undermined where public authorities or the media treat a suspect as guilty prior to conviction: Allenet de Ribemont v France (1995) 20 EHRR 557. The Bloomberg presumption can be understood as a domestic instantiation of this broader principle, protecting individuals from being subjected to a de facto public verdict before the criminal justice system has had the opportunity to assess the evidence.
Tugendhat and Christie, in their leading practitioner text on privacy and the media, have noted that the development of the misuse of private information tort has consistently recognised that information about criminal investigations falls within the protected sphere, reflecting the seriousness of the interests at stake (Tugendhat and Christie, 2016). The Supreme Court’s contribution was to consolidate this recognition into a clear rule, thereby providing greater certainty for both claimants and publishers.
The presumption is rebuttable: the balancing exercise remains intact
A critical feature of the Bloomberg decision, which its critics sometimes understate, is that the presumption operates only at the first stage of the two-stage test derived from Campbell v MGN Ltd [2004] UKHL 22 and refined in Re S (A Child) [2004] UKHL 47. Establishing a reasonable expectation of privacy means that Article 8 is engaged, but it does not determine the outcome. The second stage—the “ultimate balancing test” in which neither Article 8 nor Article 10 has presumptive priority, as emphasised by Lord Steyn in Re S at [17]—remains fully operative.
This means that in a case where the public interest in publication is particularly strong—for example, where the investigation concerns systemic corruption affecting public safety, or where there is evidence of a cover-up—the court can and should find that Article 10 outweighs Article 8. The Bloomberg presumption does not preclude this result; it merely ensures that the privacy interest is recognised as a legitimate starting point. Lord Hamblen and Lord Stephens were explicit on this point, noting that “the Article 8/10 balancing exercise will always be fact-specific” ([98]).
The criticism that Bloomberg has shifted the burden onto publishers is therefore partly a criticism of form rather than substance. Under the pre-Bloomberg case law, the reasonable expectation of privacy was regularly found to exist on the facts of individual cases involving pre-charge investigations. What has changed is that publishers can no longer argue, as a threshold matter, that being under investigation does not engage privacy at all. This is a modest doctrinal shift, and it reflects a position that was already well-established in practice.
Consistency with Strasbourg principles
The Bloomberg presumption is broadly consistent with the criteria identified by the Grand Chamber of the European Court of Human Rights in Axel Springer AG v Germany (2012) 55 EHRR 6 and Von Hannover v Germany (No 2) (2012) 55 EHRR 15 for balancing Article 8 and Article 10. Among the relevant criteria are: whether the person is a public figure; whether the information contributes to a debate of general interest; the prior conduct of the person concerned; and the content, form and consequences of the publication. The Strasbourg Court has consistently indicated that the status of a person as a mere suspect, rather than a convicted offender, is a factor weighing in favour of privacy protection, and that the media must exercise particular caution in reporting on criminal investigations to avoid prejudicing the presumption of innocence.
In Bédat v Switzerland [2016] ECHR 253, the Grand Chamber upheld Switzerland’s conviction of a journalist for publishing confidential information from a criminal investigation, finding that the interference with Article 10 was justified in part by the need to protect the suspect’s presumption of innocence and privacy rights. While the factual context differed from Bloomberg, the underlying principle—that pre-charge investigative information engages serious privacy concerns—is consistent.
Where the Criticism Has Force: Insufficient Granularity in Treatment of Public Interest
If the strongest version of the criticism is not that the presumption is inherently wrong but that it is insufficiently sensitive to the weight of countervailing public interest, then the concern has genuine force. The Bloomberg judgment devotes considerable attention to establishing the presumption but relatively less attention to specifying the circumstances in which the balancing exercise should favour publication. This asymmetry creates a risk that lower courts will apply the presumption mechanically and give insufficient weight to the public interest in disclosure.
The Strasbourg criteria in Axel Springer provide some guidance, but they are expressed at a high level of generality. In particular, the criterion of whether the information “contributes to a debate of general interest” requires careful application in the context of corporate investigations. An SFO investigation into suspected bribery by a multinational company plainly contributes to a debate of general interest: it engages questions of corporate governance, international anti-corruption policy, investor protection, and the effectiveness of UK law enforcement. Yet the Bloomberg presumption applies with equal force to such investigations as to investigations of purely private misconduct. The failure to draw distinctions based on the nature of the suspected offence and the public importance of the investigation is a legitimate basis for criticism.
Fenwick and Phillipson have argued that UK privacy law has insufficiently developed the concept of the public interest as an independent counterweight to privacy claims, tending instead to treat public interest as a secondary consideration that arises only after the privacy interest has been established (Fenwick and Phillipson, 2006). The Bloomberg presumption arguably exacerbates this tendency by formalising the privacy interest at the threshold stage while leaving the public interest to be determined on a case-by-case basis without equivalent structured guidance.
The contrast with the public interest defence in defamation law is instructive. Section 4 of the Defamation Act 2013 provides a statutory framework for assessing the public interest in publication, requiring the court to consider whether the statement was, or formed part of, a statement on a matter of public interest, and whether the defendant reasonably believed that publishing the statement was in the public interest. While the misuse of private information tort operates through a different analytical framework, the absence of an equivalent structured public interest assessment means that the Bloomberg presumption operates in a doctrinal environment where the tools for vindicating press freedom are less developed than those for vindicating privacy.
The Institutional Dimension: Courts, Parliament and the Press
An underexplored dimension of Bloomberg is the institutional question of whether the Supreme Court was the appropriate body to establish a general rule of this kind. The balance between privacy and press freedom is not a purely legal question; it engages broader questions of democratic accountability, media regulation, and the role of investigative journalism in a democratic society. Parliament has legislated extensively in this area—through the Human Rights Act 1998, the Data Protection Act 2018, and the Defamation Act 2013—but has not enacted a specific statutory rule governing pre-charge privacy. The Leveson Inquiry (2012) addressed the relationship between the press and privacy at length but did not recommend a blanket presumption of the kind established in Bloomberg.
There is a respectable argument that the establishment of a general starting-point rule, with significant implications for press freedom, is more appropriately a matter for Parliament than for the courts. Parliamentary legislation would allow for public consultation, democratic debate, and the incorporation of detailed exceptions and safeguards. The Supreme Court’s rule-making in Bloomberg, by contrast, was necessarily constrained by the facts of the case before it and by the absence of the kind of detailed evidence-gathering that a parliamentary inquiry or Law Commission review could undertake. This is not to say that the Court acted improperly—the development of the common law through incremental judicial decisions is a core feature of the UK legal system—but it does suggest that the rule as formulated may lack the granularity that a legislative intervention could provide.
Sir Mark Warby, writing extra-judicially, has observed that the misuse of private information tort has developed rapidly through judicial decision-making and that there is a case for greater legislative clarity in defining its scope and limits (Warby, 2021). The Bloomberg presumption, as a judicially created rule of general application, sits somewhat uneasily within a tort that nominally operates through fact-specific balancing.
Comparative Perspective: How Other Jurisdictions Approach the Problem
The approach in Bloomberg can be usefully, if cautiously, compared with the position in other common law jurisdictions. In the United States, the First Amendment creates a strong presumption in favour of press freedom, and there is no general tort of misuse of private information equivalent to the English doctrine. The publication of information about criminal investigations, including the naming of suspects, is generally protected unless it falls within one of the narrow categories of unprotected speech. The US approach prioritises transparency and press freedom, but at the cost of exposing uncharged suspects to significant reputational harm without legal remedy.
In Australia, the tort of invasion of privacy remains undeveloped, although the High Court of Australia in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 left open the possibility of its recognition. The absence of a developed privacy tort means that the tension between pre-charge privacy and press freedom has not been litigated to the same extent as in England.
The European position, as reflected in the Strasbourg jurisprudence, is closer to the English approach. The emphasis on the presumption of innocence and the protection of suspects’ privacy in Axel Springer and Bédat suggests that the Bloomberg presumption is not an outlier within the broader European framework. However, transplanting this comparison into the English context requires caution: the Strasbourg Court operates a margin of appreciation doctrine, and the weight given to press freedom may vary across contracting states depending on domestic constitutional traditions and media landscapes (Bratza, 2012).
The Real Doctrinal Risk: Presumption Hardening into Prohibition
The strongest version of the criticism, carefully stated, is not that the Bloomberg presumption is wrong in principle but that it is likely to harden in practice into a near-absolute prohibition on pre-charge reporting. This concern has several dimensions.
First, the presumption shifts the practical burden of justification onto publishers. While the legal burden formally remains shared under the Re S framework, the practical effect of a Supreme Court starting-point rule is that a publisher must adduce specific and compelling reasons to overcome it. In the absence of detailed guidance on what constitutes a sufficient public interest, publishers face significant uncertainty about when they can safely publish.
Second, the chilling effect operates ex ante, before any court proceedings. A media organisation deciding whether to publish must assess the risk of a successful privacy claim and the associated costs. The existence of a Supreme Court presumption increases the perceived risk and therefore deters publication, even in cases where the balancing exercise might ultimately favour Article 10. This chilling effect is particularly significant for smaller media organisations with limited legal budgets.
Third, the presumption may interact with the developing law on interim injunctions to create a further barrier to publication. If a suspect obtains an interim injunction preventing publication pending trial, the delay may deprive the information of its news value. The decision in Cream Holdings Ltd v Banerjee [2004] UKHL 44, which established that interim injunctions restraining publication should not be granted unless the applicant is likely to succeed at trial, provides some protection. However, the Bloomberg presumption strengthens the applicant’s position at the interim stage by establishing that the privacy interest is engaged as a starting point, potentially making it easier to satisfy the Cream Holdings threshold.
This risk of practical hardening is the most persuasive basis for the criticism in the essay question. If lower courts apply the presumption rigorously at the first stage and give insufficient weight to the public interest at the second stage, the result will be a de facto prohibition on pre-charge reporting that goes beyond what the Supreme Court intended and beyond what the ECHR framework requires.
A Qualified Defence: The Presumption Requires Robust Application, Not Abandonment
The appropriate response, however, is not to reject the Bloomberg presumption but to insist on its robust and context-sensitive application. The presumption addresses a genuine harm: the reputational destruction of individuals who are investigated but never charged. This harm is serious, well-documented, and disproportionately affects individuals who may lack the resources to seek legal redress. The alternative—no general presumption, with the existence of a reasonable expectation of privacy determined afresh in every case—offers less certainty and provides weaker protection for a category of individuals whose interests the law ought to take seriously.
What is needed is not the abolition of the presumption but the development of more structured guidance on the circumstances in which the public interest in publication will outweigh the privacy interest. Such guidance might include the following factors, drawn from the existing case law and scholarly commentary: the seriousness of the suspected offence; the public importance of the institution or sector under investigation; whether the suspect occupies a position of public trust or corporate responsibility; whether the information relates to the suspect’s conduct in a public capacity; whether the investigation itself raises questions about the competence or integrity of the investigating body; and whether the information is already partially in the public domain (drawing on the criteria identified in Axel Springer at [89]–[95]).
Tomlinson, in his analysis of the development of the misuse of private information tort, has argued that the tort’s coherence depends on the courts’ willingness to take the balancing exercise seriously rather than treating the first-stage analysis as determinative (Tomlinson, 2020). This observation applies with particular force to Bloomberg: the presumption is defensible only if the second-stage balancing exercise is conducted with genuine rigour and genuine sensitivity to the public interest in disclosure.
Conclusion
The proposition that Bloomberg LP v ZXC has extended the reasonable expectation of privacy “too far” into matters of legitimate public interest is a defensible but ultimately overstated criticism. The decision addresses a real and serious harm—the reputational destruction of uncharged suspects—and establishes a presumption that is consistent with Strasbourg principles, domestic data protection norms, and the accumulated weight of lower court authority. It does not eliminate the balancing exercise; it structures it. The presumption is rebuttable, and the ultimate determination of whether publication is justified remains fact-specific.
Nevertheless, the criticism identifies genuine risks. The presumption is formulated at a level of generality that is insufficiently sensitive to the weight of the public interest in reporting on serious corporate and institutional wrongdoing. It operates in a doctrinal environment where the tools for vindicating press freedom at the balancing stage are less developed than those for establishing privacy at the threshold stage. And its practical effect—including its chilling influence on editorial decision-making and its potential to strengthen applications for interim injunctions—may be more restrictive than its formal doctrinal status suggests.
The stronger conclusion is therefore nuanced. Bloomberg has not extended privacy “too far” as a matter of principle, but its presumption creates a genuine risk of over-protection in practice unless lower courts develop a more structured and rigorous approach to the second-stage balancing exercise. The decision is defensible as a starting-point rule; its legitimacy depends on whether the courts prove willing to give full and independent weight to the public interest in pre-charge reporting, particularly where the investigation concerns serious suspected wrongdoing by persons exercising public or corporate power. The real test of Bloomberg will be not the rule it announced but the balancing it requires.
References
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