ZXC v BLOOMBERG LP  EWHC 328 (QB)
The High Court has refused an application to order Bloomberg LP (“Bloomberg”) to take down an online article about a businessman known as ZXC. The judgment illustrates the court’s approach to balancing the rights engaged in such cases, namely those under Article 8 (the right to a private life) and Article 10 ECHR (the right to freedom of expression).
In 2013, a law enforcement agency announced a criminal investigation into a company. This, and the ensuing investigation, was reported in the media. In 2016, the Defendant news organisation, Bloomberg, published two articles about the claimant, ZXC, in connection with the investigation. The second, however, was based on a “confidential law enforcement document”. Nine days after publication of the second article, ZXC’s solicitors asked Bloomberg to take it down. Bloomberg declined the request and ZXC issued his application for a mandatory take-down injunction based on misuse of private information and breach of the Data Protection Act 1998.
Mr Justice Garnham considered the relevant test to be in two stages (applying ERY v Associated Newspapers  EWHC 2760). First, did the claimant have a reasonable expectation of privacy? Secondly, must that right give way to some compelling consideration? The latter stage required the Court to balance the parties’ rights under Article 8 and 10 respectively, by applying an intense focus to the particular facts and rights being claimed (In Re S (A Child)  1 AC 593). For injunctive relief, the test was whether the claimant would be “likely” to succeed in restraining publication at trial (s.12 Human Rights Act 1998 and Cream Holdings v Banerjee  1 AC 253).
For the first stage, Garnham J found that ZXC did have a reasonable expectation of privacy. He declined to lay down a blanket rule on whether Article 8 was engaged by the information that a suspect was being investigated. Instead, he based his conclusion on a “careful consideration” of the following facts: that ZXC was a businessman and not a celebrity, that the law enforcement document was confidential and had been leaked, that the law enforcement agency’s investigations had not been concluded or made public and that ZXC had not been arrested or questioned in public and had not consented to publication.
In balancing the rights under the second stage, the Judge’s approach was first to list the factors that engaged each right and then consider additional factors that went to their respective weight. In this case:
- ZXC’s Article 8 rights were engaged as there was evidence he and his family had suffered distress. The weight of this right, however, was reduced by six factors: i) the investigation of ZXC was already in the public domain (and had been reported on in the media for the past three years); (ii) ZXC had done nothing to restrain that publication in the preceding three years; (iii) ZXC waited nine days after publication before contacting Bloomberg to complain; (iv) some of ZXC’s stress must relate to the investigation and the first article about which he did not complain; (v) ZXC did not personally give evidence on his distress; and (vi) the Bloomberg article did not suggest ZXC was guilty of an offence.
- Bloomberg’s Article 10 rights were engaged as the application was to stop ongoing publication of its article. The weight of this right was increased by three factors: (i) the article was not salacious; (ii) there was no adverse reaction from the law enforcement agency; and (iii) it was a legitimate journalistic decision to include ZXC’s name. The weight was reduced, however, as (i) Bloomberg had used confidential information; and (ii) this was not “whistleblowing” journalism.
The Judge concluded that the weight attached to Bloomberg’s Article 10 rights outweighed ZXC’s Article 8 rights and so ZXC’s claim would fail.
The Judge also found, on the basis of witness evidence by the article’s author, that Bloomberg reasonably believed the publication would be in the public interest. This was a defence to ZXC’s claim under the Data Protection Act 1998 and so that claim was also likely to fail.
By a contested application, the hearing was held in private as the Judge found it would defeat the purpose of the application if the argument was reported openly. Although the application for an injunction was ultimately refused, the anonymity order continued pending any appeal.
This is the second case in the past six months where a claimant has sought to restrain publication of their name in connection to a criminal investigation of a company with which they were associated. The decision in ZXC contrasts with the decision in ERY in which the claimant businessman was seeking to restrain reportage by a national newspaper of the fact that he had been interviewed under caution by the police in respect of alleged financial crime committed by a company of which the claimant was a director. The claimant in ERY argued that because of the position he held in the company and because of his public prominence, any story about the company being under investigation would be understood by readers to be a reference to an investigation of him personally. The Court, perhaps surprisingly given the weight that Article 10 should carry in the context of the reportage of crime, granted the injunction to protect ERY from that inference.
The decision in ZXC has the appearance of moving away from the rather controversial decision in ERY. However, it could be argued that the key differentiating factor in ERY was simply that the article in question was yet to be published. By contrast, ZXC suffered by delaying his approach to Bloomberg, particularly as the article had already been published and, prior to publication, the information was in the public domain. Were this not the case, the outcome may have been the same as in ERY. Further guidance is clearly needed in this area from the High Court or Court of Appeal.