February 21, 2022
In Bloomberg LP v ZCX  UKSC 5 (see item above) the Supreme Court ruled that a person under criminal investigation has a reasonable expectation of privacy prior to charge, a ruling that could have “serious effects” on the media’s ability to report on the initial stages of a police investigation, the NMA says.
The Supreme Court unanimously dismissed an appeal from Bloomberg over its reporting of an investigation by an unnamed UK law enforcement body into allegations of corruption, bribery and fraud by a company in a foreign country. The Supreme Court found that Bloomberg had breached the Article 8 rights of the suspect in question, who was the subject of a criminal investigation, by naming him in the article.
Wiggin’s Matthew Dando told the NMA: “This decision deals a severe blow to the media’s ability to report on investigations and arrests made by the police and other public authorities. It is chilling that in a modern democracy there is now a general expectation of privacy in the fact of an investigation by the state. The decision tips the scales too heavily in favour of the suppression of information at a time when the media’s role as the eyes and ears of the public has never been more important.
“With each encroachment on editorial discretion comes inevitable self-censorship as editors take decisions mindful of being second guessed by the courts in subsequent litigation, all of which means they will be more selective on what they print, and the British public will be less well informed.”
Dawn Alford, executive director of the Society of Editors, warned that the ruling would have “far-reaching implications for the British media. Not only does the ruling fundamentally go against the principle of open justice, but there is also a real risk that the bar is now so high for privacy cases that legitimate public interest journalism will go unreported.
“It is well-documented that identifying suspects can lead to other complainants coming forward alongside witnesses for any future prosecution or defence. In addition, it is vitally important that the actions of the police remain open to scrutiny.
“Journalists take seriously their responsibilities under the Contempt of Court Act and Defamation Act. While the Society recognises that anonymity is appropriate in certain circumstances, the default position should always be in favour of openness rather than secrecy.”
A spokesperson for Bloomberg News said: “We are disappointed by the court’s decision, which we believe prevents journalists from doing one of the most essential aspects of their job: putting the conduct of companies and individuals under appropriate scrutiny and protecting the public from possible misconduct.”
The NMA says that there is increasing concern over attempts to silence legitimate reporting, with the ongoing issue of SLAPPs being used to intimidate journalists so that they cease their investigative reporting.
The NMA reports that in The Guardian last week, Wiggin’s Caroline Kean urged MPs to consider legislation that would prevent public interest journalism from being shut down. She said: “I think it is healthy for democracy and in the public interest to have that debate, without being afraid that one aspect of that criticism will meet the displeasure of somebody who has the wealth to squash it. It’s really important for everybody who cares about this to put their shoulders to the wheel and make sure that something does happen.” To read NMA’s press release in full, click here.