Privacy – High Court Refuses Interim Injunction

March 6, 2017

In ZXC v Bloomberg LP [2017] EWHC 328 (QB) the High Court in England and Wales refused to grant an Interim Injunction pending trial based on a claim of misuse of private information.  The Plaintiff’s claim also required the removal or redaction of an article published on www.bloomberg.com. The article referred to the Plaintiff in connection with a criminal investigation by a law enforcement agency into a company.

Background

Bloomberg LP, an online news organisation, published on its website an article by one of its journalists which referred to the Plaintiff and indicated that he, amongst others, was being investigated. The Plaintiff sought an Order from the Court that information relating to him in the article be taken down from the website.

In 2013, a law enforcement agency announced the start of a criminal investigation into a company. The law enforcement agency investigation had continued, as has the press reporting of that investigation.  In mid-2016 the Defendant published an article about the Plaintiff in connection with the investigation.  No attempt was made by the Plaintiff to prevent the publication of that article and in May 2016 the Defendant published on its website the article now under challenge in the above proceedings.

After a short scrimmage between the Plaintiff’s solicitor and the law enforcement agency about the potential leaking of a document belonging to the agency, the Plaintiff’s solicitors wrote to the Defendant putting them on notice of the breach of “our client’s rights in privacy”, confidence and the Data Protection Act 1998. The Defendant declined the Plaintiff solicitor’s request to take down the article or to provide an undertaking and these proceedings followed.

Competing Arguments

The Plaintiff sought an interim injunction pending trial requiring the removal of the article, or alternatively the removal of those parts of the article that referred to him, based on what he says was a misuse of private information. The Plaintiff contended that he has a reasonable expectation of privacy, based on what he says is misuse of private information.  The Plaintiff contended that he has a reasonable expectation of privacy in respect of the law enforcement agency’s investigation and that the law enforcement agency’s documents are highly confidential.  He argued that there was no public interest in publishing highly confidential, leaked information about an on-going criminal investigation into him.  He advised that even if there were it would not outweigh his rights pursuant to Article 8 of the Human Rights Act 1998.  The Plaintiff further argued that the fact that information has already been published does not prevent the grant of an interim injunction to prevent further intrusion into his private and family life.

In response, Bloomberg said that requiring them to take down the article would affect their right to freedom of expression and that the relevant parts of the Human Rights Act 1998 applied. They argued that the Claimant must establish that he is likely to succeed a trail, and that he has no realistic prospect of doing so.  Bloomberg argued that there is not a reasonable expectation of privacy in the parts of the article which identify the Plaintiff and that even if he could show that there was a reasonable expectation of privacy, the harm done to the Plaintiff through the article remaining on the website is negligible.  The Plaintiff had provided a Witness Statement in support of the application but suggested the only harm suffered is stress additional to that inevitably experienced as a result of the law enforcement agency’s investigation.  Further, the content of the Article had already been widely made available to the public and has been reproduced by other publishers, around the world.  Furthermore, the Defendants argued that there was a strong public interest in the continued publication of the Article and that making an Order would be an undue interference with free expression.

Legal Principles

Section 12 of the Human Rights Act applies in this case and its effect in the test for establishing a right to an Interim Injunction was explained by the House of Lords in Cream Holdings v Banerjee [2005] 1 AC 253 which outlined that where the damage is imminent or the adverse consequences of publication would be especially serious, the Court has to consider whether the Plaintiff 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.

In considering such a claim the Court has to consider whether the Plaintiff’s right to a private life is engaged and if so whether in all circumstances, the Plaintiff’s qualified right has to give way to some competing consideration. The Court has to balance the Article 8 right of the Plaintiff with the Article 10 right of the Defendant.

Judgment

After setting out the principal factors, the Judge concluded that the Plaintiff’s Article 8 rights were engaged however in his judgment the weight to be attached to the alleged breaches of Article 8 fall to be reduced by a number of factors as follows:-

  1. There was no attempt by the Plaintiff to restrain publication of the first Article in mid-2016;
  2. There was already information in the public domain, put there by other news organisations, about the fact that the Plaintiff was being investigated by the law enforcement agency;
  3. It took the Plaintiff 9 days to indicate objection to the Article. During that time the Article would undoubtedly have been widely read online and reproduced by other news organisations;
  4. The Judge accepted that there was undoubtedly stress and anxiety caused to the Plaintiff and his family and by the fact that he is the subject of an investigation by a law enforcement agency at all, and by the fact of the initial publication in 2016. It is only the additional stress caused by fact that the article remains on the Defendant’s website that can fall on his side of the balance in these proceedings;
  5. The Plaintiff has filed no Witness Statement of his own giving any detail as to the effects on him or his family of the continued presence of the article on the Defendant’s website;
  6. The article does not suggest that the Plaintiff is guilty of any offence, only that he is being investigated. The Judge felt that this was a particularly significant consideration when weighing up the effect of the Article 8 breach.

The Judge further found that on the Defendant’s side of the balance, the weight to be attached to their Article 10 rights seems to be substantial due to the following factors:-

  1. This was not some salacious “kiss and tell” piece of journalism. The Judge found that the Article constituted a serious piece of journalism about a serious topic;
  2. The Article prompted no adverse reaction from the investigators concerned and they appear to have no fears that the reporting was damaging to the investigation. The Judge pointed out that had the Plaintiff’s application been supported or indeed made by the law enforcement agency, the outcome may have been very different;
  3. The Defendant is entitled to assert that the inclusion of the Plaintiff’s name in the piece is a legitimate journalistic decision.

The Judge did however consider that the weight to be attributed to the factors on the Defendant’s side of the scales does fall to be reduced by the fact that the Defendants were making public highly confidential information contained in the formal law enforcement document and that this was not “whistleblowing” journalism whereby the Defendants were not revealing wrong doing that might otherwise go un-detected.

Accordingly, the Judge found that the weight to be attached to the Defendant’s Article 10 rights comfortably outweigh the Plaintiff’s Article 8 rights and that therefore the Plaintiff’s claim based on Article 8 must fail.

Data Protection Act

The Plaintiff also argued that he has a right to removal of the Article under Section 10 of the Data Protection Act. The Plaintiff argued that he gave the Defendants appropriate notice and required the Defendant to cease processing the relevant data by taking down the Article.  The Plaintiff argued that the continued hosting of the Article on the Defendant’s website constitutes continued processing of data for which the Defendant has no consent.  The Plaintiff argued that the Defendant cannot rely on the Section 32 exemption under the 1998 Act because they could have had no reasonable belief that the publication of the Article was in the public interest.  The Article referred to unproven allegations in respect of which no charge has been brought and the underlying document was highly confidential.  The source of the information is not identified in the Article and the source was not a whistle-blower.

The Defendant argued that Plaintiff has no realistic prospect of the Data Protection Act Claim succeeding because the Defendant is entitled to rely on the Defence provided by section 32 of the Act as they reasonably believed that the publication would be in the public interest.

The Judge found, after reading the Defendant’s Witness Statement that the decision to refer to the Plaintiff in the Article was taken after careful consideration of the relevant circumstances, including the public interest in the disclosure of the Plaintiff’s involvement. The Judge believed that  it is clear that the Defendant as data controller believed, and believed on reasonable grounds, that publication would be in the public interest.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.

Should you have queries about the content of this article, please do not hesitate to contact Fergal Maguire, Director.

E: f.maguire@cfrlaw.co.uk

T: 02890271307