Privacy, defamation and ZXC v Bloomberg

The significance of the Supreme Court decision in ZXC v Bloomberg extends well beyond recognition of the 'starting point' that, up to the point of charge, a person who is subject to police investigation has a reasonable expectation of privacy in respect of information about it. The Supreme Court's willingness to use the privacy tort to protect a claimant's reputational interests (based largely on European Court of Human Rights jurisprudence) moves the misuse of private information action firmly into defamation's domain. This article examines the potential ramifications of the change in relationship between the two actions and shows how measures like the new exception for foreseeable loss of reputation (recognised in ZXC itself) can help preserve essential protections for true, but reputationally-damaging, allegations.

Keywords: Privacy; misuse of private information; defamation; reputation

Most people will support the idea – which underpinned decision-making at all levels of ZXC v Bloomberg – that there should be some legal protection against the reputational harm caused by publication of details of a police investigation into an innocent person's conduct. Most would also agree that, at the very early stages of their investigations, police should not feed information about named suspects to the media without a good reason for doing so. But the ramifications of the Supreme Court decision in ZXC are more complex than these two propositions would suggest. The judgment – released just six weeks after the case was argued – contains surprisingly broad statements about the role of the misuse of private information tort in protecting reputation. It also raises questions about how heavily domestic courts should rely on the jurisprudence of the European Court of Human Rights (the 'ECtHR' or 'Strasbourg') when developing private law. Its significance, therefore, reaches well beyond the facts of the case and into the shape of speech-harm protection and, indeed, common law development, more broadly.

Using the privacy tort to protect reputation

In ZXC, the Supreme Court upheld the High Court and Court of Appeal's conclusion that a company chief executive had a reasonable expectation of privacy in respect of information contained in a letter of request sent to a foreign state by a UK law enforcement body which was investigating him for corruption. That expectation was held not to be outweighed by Bloomberg's countervailing right to publish information in the public interest. The Court held that it is a 'general rule', or 'legitimate starting point', that a claimant will have a reasonable expectation of privacy in respect of the fact and details of a criminal investigation into his or her conduct.[1] This applies up to the point of charge, after which point, the interest in open justice kicks in.[2] The 'general rule' can be displaced in appropriate cases (including where police need to respond to a threat to life, to issue a warning, or take other measures for the prevention or detection of crime)[3] and will only apply if the claimant can show that he or she had an objectively reasonable expectation of privacy in the specific circumstances of the case.[4] It is also confined to information about or derived from an official investigation; it does not apply to information about alleged wrongdoing derived from other sources.[5] No exception to the 'starting point' was made, however, for disclosures about police investigations made by victims of the alleged wrongdoing themselves; in fact, there was no discussion at any level of ZXC of its potential impact on victims. The judgment therefore leaves open the possibility that a victim who tells a friend or therapist about a police investigation into his or her own accurate allegations, or about information derived from that investigation, could breach the perpetrator's reasonable expectation of privacy. The same is true, a fortiori, if the victim mentions the investigation on social media. Whilst such claimants are likely to have a defence at stage II of the action (at least where the disclosure is limited and/or made for therapeutic purposes), a clear exemption would more effectively ameliorate the potential chilling effect of the decision on victims of wrongdoing who are telling the truth.[6]

A lot more could be said about the extension of the privacy action to pre-charge criminal investigations[7] but the significance of ZXC now goes well beyond that limited set of circumstances. This is because, in a number of generalised statements, the Supreme Court affirmed the wider proposition that a claimant can rely on the misuse of private information action to protect his or her reputation. The Court rejected Bloomberg's argument that the claimant should be required to show that, irrespective of its effect on his reputation, the information in question belonged to part of the claimant's life which is no-one else's concern. It stressed, in response, that the ECtHR has consistently held that reputation falls within the scope of the right to private life in the European Convention on Human Rights (the 'Convention' or 'ECHR').[8] Having acknowledged briefly that in English law the reputational dimension of Article 8 is primarily protected by defamation, it said that:

reputational damage attaining a certain level of seriousness and causing prejudice to personal enjoyment of the right to respect for private life, can also be taken into account in determining whether information is objectively subject to a reasonable expectation of privacy in the tort of misuse of private information.[9]

This conclusion, it said, is backed up by domestic law. The Court observed that a claimant's reputational interest would fall within 'the effect of the publication on the claimant' (identified as relevant to the existence of a reasonable expectation of privacy by the Court of Appeal in Murray v Express Newspapers Ltd) and within wider consideration of 'all the circumstances of the case'.[10] When taken alongside other factors in the case – most significantly, the highly confidential nature of the information contained in the letter of request[11] – the reputational harm suffered by the claimant was enough to establish a reasonable expectation of privacy in respect of the information about the investigations.

Limitations on the effect of reputational harm on the reasonable expectation of privacy

All this means that the fact that a disclosure seriously damages a claimant's reputation can support a reasonable expectation of privacy claim in respect of it. In other words, even if the information does not reveal anything about a claimant's health, sexual activities, relationships or any other intimate aspect of his or her life, it might still be regarded as private because it harms his or her reputation.

It is not clear, however, how far this goes outside the police investigation context. Given that the Court merely said that serious reputational harm can be 'taken into account' when determining whether there is a reasonable expectation of privacy, it is unclear that it can be enough on its own to establish the expectation.[12] In ZXC itself, both the special protection for police investigations and the strict confidentiality of the letter of request had a significant bearing on the claimant's success.[13] It is questionable whether a claimant could establish a reasonable expectation of privacy for reputational harm without special factors of this nature at play. It seems doubtful, for example, that a person would have a good privacy claim against a victim who has simply made reputationally damaging allegations about him or her in the media or online.[14]

The Supreme Court in ZXC also introduced an explicit limitation on the circumstances in which harm to reputation will support a reasonable expectation of privacy. Unlike the courts below, it adopted the ECtHR's caveat in Denisov v Ukraine that:

Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one's own actions, such as, for example, the commission of a criminal offence ... This extended principle should cover not only criminal offences but also other misconduct entailing a measure of legal responsibility with foreseeable negative effects on 'private life'.[15]

The Supreme Court held that misconduct on the part of the claimant 'entailing a measure of legal responsibility' will be a 'circumstance' courts can take into account when determining whether he or she has a reasonable expectation of privacy in the information in question.[16] And, it said, although the examples given in Denisov suggest the exception will ordinarily apply to misconduct established after 'authoritative findings following an official investigation' (by a body such as the Medical Council or a court in a civil trial), this is not a requirement:[17] 'we do not consider that misconduct is confined to a finding at the end of a criminal or other authoritative process'.[18] This means, it said, that a person could not claim a reasonable expectation of privacy if he or she was involved in, say, an armed bank robbery which was widely televised.[19]

This is a significant caveat. Read broadly, it means that if the defendant can show that the claimant was guilty of misconduct (that he or she is legally responsible for) which would foreseeably lead to a loss of reputation, then any loss of reputation which results will not support a reasonable expectation of privacy. And since both detection and loss of reputation are a foreseeable consequence of any non-trivial criminal offending, the exception would seem to apply whenever the defendant can show that the allegations of criminality are true. Foreseeable loss of reputation also follows other kinds of 'misconduct entailing a measure of legal responsibility'.[20] Since we all know that people are likely to think less of us if we bully our work colleagues, fail to pay our creditors, or mistreat our children (and that such behaviour might well be discovered) any reputational loss which results from that misconduct will be foreseeable. So, again, if the defendant can prove the truth of the misconduct allegations, the exception would seem to apply. And, finally, since 'misconduct' for the purposes of this exception can apply without 'a finding at the end of a criminal or other authoritative process', proof of serious misconduct itself can probably bring the Denisov exception into play.[21]

It seems to follow that if the defendants had been able to prove that the claimant was guilty of the offending for which he was being investigated in ZXC, the loss of reputation he suffered when the information was published would not have supported his reasonable expectation of privacy claim. Indeed, the Supreme Court's approval of Denisov arguably takes matters one step further: since the ECtHR said that 'Article 8 cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one's own actions',[22]ZXC could be seen to preclude protection of an undeserved reputation in any circumstances.

Failure to address concerns about using the privacy tort to protect reputation

This 'foreseeable loss of reputation' exception has welcome parallels with the truth defence in defamation. Like that defence, it helps ensure that privacy claimants cannot recover for harm to a reputation which they do not deserve (because the information in question is true). This, combined with the fact that reputational harm might not be enough on its own to establish a reasonable expectation of privacy, limits the otherwise significant impact that the use of misuse of private information to protect reputational harm could have on defamation.

It is striking, however, that the Supreme Court did not deal in any detail with the relationship between privacy and defamation in ZXC itself. As mentioned, there is very brief recognition, just before the conclusion that misuse of private information can protect reputation, that in English law, reputation 'is primarily protected by the tort of defamation' but there is little engagement with what that means for the scope of the privacy tort.[23] There is no detailed discussion of the role that defamation plays in protecting private life in Article 8 and limited acknowledgement of the fact that the misuse of private information tort is much narrower than the Strasbourg privacy right. Indeed, in some places, the Court seems to treat the Convention right to private life and the reasonable expectation of privacy in private law as conterminous. Its first response, for example, to Bloomberg's submission that information should not be regarded as private simply because it is reputationally damaging is that it was an 'unduly restrictive view of the protection afforded by Article 8 of the ECHR'.[24] Earlier in the judgment, it also said that, whereas 'the falsity of the information at issue' is of central importance in defamation, the purpose of the tort of misuse of information is to 'protect an individual's private life in accordance with Article 8 of the ECHR, whether the information is true or false'.[25] Taken out of context, this statement could be taken to suggest that the reasonable expectation of privacy is similar in scope to the Convention right to respect for private life. But, of course, it has always been much narrower. As Nicklin J pointed out in ZXC itself, a range of private law actions (including privacy, data protection, nuisance, and defamation) help the United Kingdom meets its positive Convention obligation to ensure that private citizens protect each other's private lives; the misuse of private information tort is just one of them.[26]

In light of this, it is striking that there is no discussion in ZXC of English cases saying that claimants should not be able to rely on misuse of private information where the 'nub' of their complaint is reputational harm because that would mean circumventing free-speech protections built into defamation (especially the rule in Bonnard v Perryman that an injunction should not be awarded if the defendant intends to plead truth).[27] And although the Supreme Court expressed obiter 'reservations about the extent to which quantification of damages for the tort of misuse of private information should be affected by the approach adopted in cases of defamation',[28] there is no analysis of important recent decisions discussing that very point. For example, in Sicri v Associated Newspapers Ltd, Warby J (as he then was) said that, had he been unable to dispose of the case on other grounds, he would have held that the innocent claimant could not recover damages for reputational harm caused by publications naming him as a suspect in the Manchester Arena bombing, even though they were a breach of his privacy. This was because there was no principled reason for departing from the rule – which has been part of the common law for 'centuries' – that an individual cannot recover damages for reputational injury caused by the publication of information that is substantially true.[29] Having observed that the Court of Appeal had repeatedly resisted attempts to use causes of action, other than defamation, to award injunctions or damages for defamatory statements, Warby J said that:

there remains a good deal to be said today for the principle, identified long ago by the Court of Appeal in Lonrho v Fayed (No 5) [1993] 1 WLR 1489 that reputational damages are only available in defamation and limited other torts which are premised on the falsity of the information ... [T]here would ... be merit in a general rule that a claimant who seeks to clear his name of a defamatory imputation arising from a wrongful disclosure of private information, and to recover damages for reputational harm, should be required to bring a claim in defamation.[30]

Nicklin J made a similar point at first instance in ZXC:

It is a fundamental principle in the law of defamation that damages and vindication of reputation should not be awarded on a false basis: i.e. where the defamatory allegation can be proved to be substantially or partially true ... Looked at through this prism, the imposition of an award of damages for damage to reputation is an interference with the Article 10 right which cannot be said to be necessary to protect the Article 8 rights of another if the defamatory allegation is true.[31]

There was also no acknowledgement of the fact that the claimant in ZXC itself had a defamation claim available to him. It is well-established that a defendant who reveals that a person is the subject of police investigation cannot avoid liability for defamation simply by showing that the investigation did indeed take place; rather, when the sting is that claimant is guilty or there are good reasons to think so, the defendant needs to provide evidence supporting the underlying allegations.[32] It follows that if the underlying allegations are untrue, claimants can recover for the harm caused by publications about investigations into their conduct. It is notable in this regard that the claimant in Sicri only dropped a defamation claim he had initially pursued after the one-year limitation period for that action had expired.[33] The claimant in ZXC would have had a similar claim available.

Finally, there was limited discussion in ZXC of how the protection of reputation fits alongside the types of information courts have usually identified as private. Indeed, when it came to discussing the type of situations in which reasonable expectations of privacy have typically arisen, the Court simply summarised a one-paragraph taxonomy from a defamation textbook (in which the authors themselves warned of the 'dangers in generalisation') and referred to another textbook written some 12 years ago.[34] The cases cited in support of the taxonomy were not identified in the judgment (readers were, instead, directed to the footnotes of the defamation text) nor was the reasoning therein examined.

Academic criticism of blurring the boundaries between privacy and defamation

This failure to grapple with the interplay between privacy and defamation is more surprising given the weight of academic concern about it. Many commentators share judges' concerns that that allowing breach of privacy to protect reputation risks subverting the free-speech protections built into defamation. These include the rule in Bonnard v Perryman against the award of injunctions if a defendant is intending to plead truth, the defence of truth itself, the public interest journalism defence, and the one-year limitation period (which is obviously much shorter than the six-year limitation period for misuse of private information).[35]

Numerous commentators also agree that upholding privacy claims when the 'nub' of the complaint is harm to reputation disrupts the conceptual boundaries between privacy and defamation. This author, for example, has argued that extending privacy protection to the reputational harm caused by inaccurate disclosures obscures the fact that privacy is actually about protecting the true self from unwarranted exposure.[36] I have also argued that police investigation cases fit better into breach of confidence than the misuse of private information action.[37] Jacob Rowbottom also points out, in his critique of Richard v BBC, that privacy laws prevent the public from evaluating a person on the basis of information which, even if true, is irrelevant, whilst defamation protects the right not to have untrue allegations made about oneself.[38] He says that, because Cliff Richard's complaint about video footage of the police searching his home in connection with an unfounded historic abuse claim was motivated by 'reputational concerns', its success 'blurred th[e] distinction' between the two actions.[39] Jeevan Hariharan agrees that in defamation 'the core interest protected is not reputation generally but rather a person's specific interest in not having their standing in society besmirched by false allegations'; whilst in misuse of private information, 'the core interest protected is informational privacy; reputation is only ever protected in an incidental way'.[40] It follows, he says (echoing Warby J's conclusion in Sicri) that claimants seeking reputational damages should be required to bring an action in defamation; it should not be possible to recover for infringement of defamation's core interest in a privacy claim.[41]

The implications of ZXC

The fact that the Supreme Court declined to deal with these concerns about coherence between privacy and defamation in ZXC itself leaves lower courts to work out how the case fits into its wider common law context. Courts will need to deal with the breakdown of the traditional understanding, outlined above, that defamation is concerned with the harm caused by publication of false allegations whilst privacy protects against exposure of information because, even if true, it is no-one else's business. It can no longer be said, as Nicklin J did in ZXC itself, that 'the truth or falsity of the information that forms the basis of a complaint of misuse of private information is generally irrelevant'.[42] Rather, in some cases it will be determinative. Whilst it was never absolute,[43] there is a real risk that loss of this truth/falsity dividing line will enable claimants to avoid the free-speech protections built into defamation by pleading misuse of private information instead.

Courts' first step in responding to this should be to ensure that the defamation-based free-speech protections are replicated, at least to some extent, in the misuse of private information action. The 'foreseeable loss of reputation' exception gives courts some ability to do this. If read broadly, it can reflect the important principle, supported by Sicri and Lonhro, that there should be no redress in privacy for loss of a reputation which the claimant does not deserve.[44] Courts can also ensure that reputational loss will only support a reasonable expectation of privacy if there are other reasons for regarding the information as private (such as an obligation of confidence in respect of the information in question). This would prevent information (such as that contained in allegations of serious wrongdoing) from being private simply because it harms a person's reputation and, as a result, limit the privacy action's overlap with defamation. Courts can also continue to develop a privacy-based version of the Bonnard v Perryman rule that injunctions should not usually be awarded if the defendant intends to show that the information leading to reputational harm was true.[45]

Finally, lower courts might need to revisit the balance between privacy and other interests at stage II of the privacy action. The Court in ZXC declined to consider Bloomberg's argument that the balance between privacy and free-speech interests at stage II of the action had been struck in the wrong place, briefly stating that the success of that argument turned on the defendant pointing to an error in the lower courts' approach to the reasonable expectation of privacy and/or the relevance of the confidentiality of the document.[46] Yet it is not self-evident why this was the case; there are matters other than the public interest in the confidentiality of the letter of request which might have affected the stage II balancing. This includes the Supreme Court's own decision in Flood v Times Newspapers Ltd and the House of Lords' decision in Jameel v Wall Street Journal Europe SPRL (No 3), that there was sufficient public interest in information about police investigations into named individuals' behaviour for the responsible journalism defence in defamation to apply (even though, in the case of Flood, the allegations of police corruption had been found to be false).[47] It must be at least arguable that there is a similar public interest in such investigations when they are the subject of a privacy claim.

Conclusion

The significance of the Supreme Court decision in ZXC, therefore, lies as much in what was left out of the judgment as what was put in. Failure to address its implications for the relationship between privacy and defamation leaves unanswered important questions about what each action is designed to protect and how courts can prevent the former from subsuming important free-speech protections in the latter. Whilst the exception for 'foreseeable losses of reputation' provides welcome protection for true allegations of serious wrongdoing in the privacy tort, more work needs to be done to prevent the reputational dimension of misuse of private information from running roughshod over defamation.

The reasoning in ZXC also risks adding grist to the mill of those who argue that ECtHR jurisprudence has too much influence on English private law. The Supreme Court shows a tendency throughout the judgment to favour the ECtHR's broad-brush statements about the scope of the Convention right to private life over close engagement with domestic cases applying the reasonable expectation of privacy test. This makes privacy law unnecessarily vulnerable to (potentially imminent) legislative change in the way Strasbourg jurisprudence is taken 'into account' in domestic cases. It also, with respect, over-privileges observations made in the context of supranational supervision of multiple Member States – most of which recognise a broad 'right to personality' and therefore do not need to delineate strictly between privacy and defamation – over apposite domestic law. As Lord Leggatt observed in Lloyd v Google, 'the conditions of the tort are governed by English domestic law and not the Convention'.[48]

Fortunately, however, lower courts do have the tools – including the new foreseeable reputational harm exception – to ensure that some consistency between the defamation and privacy actions is maintained. It is to be hoped that they will use them liberally.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

1 Bloomberg LP v ZXC [2022] UKSC 5, [2022] 2 WLR 424 [72], [144] (ZXC(SC)). 2 ibid [77]. 3 See ZXC v Bloomberg LP (ZXC (HC)) [2019] EWHC 970 (QB), [2019] EMLR 20 [122(iii)], [124]; ZXC v Bloomberg LP (ZXC (CA)) [2020] EWCA Civ 611, [2021] QB 28 [85]. 4 ZXC (SC) at [67]–[70]. 5 ZXC (SC) (n 1) [78]. 6 See CWD v Nevitt [2020] EWHC 1289 (QB) [68] and, for more detailed discussion of defences for limited and/or therapeutic disclosures, NA Moreham 'A v B' in P Wragg and P Coe (eds), Landmark Cases in Privacy Law (Hart Publishing 2023) (forthcoming). 7 See further, NA Moreham 'Privacy, reputation and alleged wrongdoing: why police investigations should not be regarded as private' [2019] 11 Journal of Media Law 142; 'Police investigations, privacy and the Marcel principle in breach of confidence' [2020] 12 Journal of Media Law 1; 'Privacy and Police Investigations: ZXC v Bloomberg' [2021] CLJ 5; and Peters v Attorney-General [2021] NZCA 355 at [170] where the New Zealand Court of Appeal held (citing Moreham ibid (2019)) that there is 'room for debate about whether information about a live investigation into a person's affairs has the necessary character of privacy'. 8 ZXC (SC) (n 1) [115]–[121] citing Denisov v Ukraine App no 77639/11 (ECtHR, 25 September 2018) [95]. 9 ZXC (SC) (n 1) [125]. ZXC (SC) (n 1) [125] and [100]–[108] citing Murray v Express Newspapers Ltd [2008] EWCA Civ 446 [2009] Ch 481 [36]. See ibid [11]–[17]. ibid [125]. ibid [11]–[17]; ZXC (HC) [122]–[123]. The Court makes clear that the 'starting point' that information will be private does not apply to such situations since the information is not about or derived from a police investigation (ZXC (SC) (n 1) [78]) (cf BVC v EWF [2019] EWHC 2506 (QB) [140]). A person against whom such allegations were made would, of course, have a claim in defamation. ZXC (SC) (n 1) [119], citing Denisov (n 8) [98]. ibid [123]. ibid [123]. ibid [123]. ibid [123]. ibid [123]. ibid [123]. ibid [119], citing Denisov (n 8) [98]. ZXC (SC) (n 1) [125]. ibid [115]. ibid [111]. ZXC (HC) (n 3) [149(i)]. See e.g.McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73 [79]; Terry (formerly LNS) v Persons Unknown [2010] EWHC 119 (QB) [95]; and RST v UVW [2009] EWHC 2448 (QB) [24]–[26]. For the rule see Bonnard v Perryman [1891] 2 Ch 269. ZXC (SC) (n 1) [79]. Sicri v Associated Newspapers Ltd [2020] EWHC 3541 (QB), [2021] 4 WLR 9 [154]. ibid [158] (see also [159]–[166]). Cf Mann J's judgments in Hannon and Dufour v News Group Newspapers Ltd [2014] EWHC 1580 (Ch), [2014] CN 949 [53]–[56], [62], and Richard v British Broadcasting Corporation [2018] EWHC 1837 (Ch), [2019] Ch 169 [337], [345], the latter of which was distinguished in Sicri because the defendants in that case had had an opportunity to argue that the underlying allegation was true (Sicri (n 29) [151]). ZXC (HC) (n 3)[149(iv)]. This part of the decision was not challenged on appeal. See, e.g., Lewis v Daily Telegraph [1963] 1 QB 340, [1962] 3 WLR 50 [406]–[408] and Chase v Newsgroup Newspapers Ltd [2002] EWCA Civ 1772 [48]–[51]. Sicri (n 29) [57] and [165(4)(a)]. ZXC (SC) (n 1) [52]–[53] referring, respectively, to Gatley on Libel and Slander, 12th ed (Sweet & Maxwell Ltd 2013) [22.5] and Carter- Ruck on Libel and Privacy, 6th ed (Butterworths 2010) [19.7] and [19.9]–[19.64]. See, for example, NA Moreham, 'Privacy and Police Investigations: ZXC v Bloomberg' (n 7); J Rowbottom, 'Reporting police investigations, privacy rights and social stigma: Richard v BBC' [2018] 10 Journal of Media Law 115 and the 'Introduction' to this symposium; J Hariharan, 'Damages for reputational harm: can privacy actions tread on defamation's turf?' [2021] 13 Journal of Media Law 186; 'Privacy and Defamation in ZXC: Some Concerns about Coherence' in this collection; and Sir David Eady, 'A case of the highest authority ... so how to cope?' (forthcoming, Victoria University of Wellington Law Review, Special issue in honour of Prof ATH Smith, 2023). NA Moreham, 'Privacy, reputation and alleged wrongdoing: why police investigations should not be regarded as private' (n 7) 152; Moreham, 'Privacy and Police Investigations: ZXC v Bloomberg' (n 7). See further, NA Moreham, 'Police investigations, privacy and the Marcel principle in breach of confidence' (n 7), which explains that if information of a personal or confidential nature is obtained in furtherance of a public duty or exercise of a legal power (like a police investigatory powers) then the recipient will generally owe a duty to the person to whom the information relates not to use it for other purposes (R (on the application of Ingenious Media Holdings plc) v Commissioners for HMRC [2016] USKC 54, 1 WLR 4164 [17]). So if, as in cases like Hannon, Richard and ZXC, the police somehow allowed information about their investigations to fall into the hands of people who wished to publish it, then the suspect will have an action in confidence. (For a response to this and NA Moreham, 'Privacy, reputation and alleged of wrongdoing: why police investigations should not be regarded as private' (n 7), see R Craig and G Phillipson 'Privacy, reputation and anonymity until charge: ZXC goes to the Supreme Court' [2021] 13 Journal of Media Law 153). Rowbottom (n 35) 123. ibid 123. Hariharan (n 35) 209. ibid 206. See further Eady, 'A decision of highest authority: so what's to be done about it?' (n 35). ZXC (HC) (n 3) [149(iii)]. Privacy can both protect reputation incidentally and protect against false disclosures in some circumstances (see NA Moreham, 'Privacy, reputation and alleged of wrongdoing: why police investigations should not be regarded as private' (n 7) 150–153). It also reflects the breach of confidence and privacy principle that a claimant should not be protected against exposure of his or her own serious wrongdoing. See further, NA Moreham, 'Privacy, reputation and alleged of wrongdoing: why police investigations should not be regarded as private' (n 7) 155–160 and, in respect of misuse of private information, Lord Browne of Madingley v Associated Newspapers Ltd [2007] EWCA Civ 295, [2008] QB 103 [52]–[55]; ABC v Telegraph Media Group Ltd [2018] EWCA Civ 2329, 2 All ER 684 [34]; BKM Ltd v British Broadcasting Corporation [2009] EWHC 3151 (Ch) [35]. See e.g., LJY v Person(s) Unknown [2017] EWHC 3230 (QB) [41]–[43]; Khan (formerly KTO) v Khan (formerly KTA) [2018] EWHC 241 (QB) [69]–[72]. ZXC (SC) (n 1) [157]. Flood v Times Newspapers Ltd [2012] UKSC 11, [2012] 2 AC 273 [99] (Lord Phillips); and Jameel v Wall Street Journal Europe SPRL (No 3) [2006] UKHL 44 [111] (Lord Hope), [148] (Lord Scott). Lloyd v Google [2021] UKSC 50, [2021] 3 WLR 1268 [126]. See further P Giliker, 'A common law tort of privacy? The challenges of developing a human rights tort' [2015] 27 SAcLJ 761; and D Nolan, 'Negligence and human rights law: the case for separate development' [2013] 76(2) MLR 286.

By N. A. Moreham

Reported by Author

N. A. Moreham is Professor of Law at Victoria University of Wellington. Professor Moreham was formerly a Fellow and Lecturer in Law at Gonville and Caius College at the University of Cambridge and was also an LLM and PhD student at Caius, the latter under the supervision of the late Tony Weir.