Privacy and defamation in ZXC: some concerns about coherence

This contribution considers the way that defamation law features in the Supreme Court's analysis of the misuse of private information tort in ZXC v Bloomberg LP. The court, it is argued, is markedly reluctant to accept that the operation of the privacy action is impacted by the law of defamation. Exploring the question of damages helps to show that this approach raises concerns about the law's coherence and could lead to significant difficulties in future cases.

Keywords: Misuse of private information; defamation; reputation; damages; coherence

In its reasons for dismissing Bloomberg's appeal in ZXC v Bloomberg LP, the Supreme Court endorsed two important propositions about how the tort of misuse of private information interacts with the long-standing tort of defamation:

Proposition 1: Misuse of private information is a 'separate, distinct and stand-alone tort' from defamation, which has 'different constituent elements and serves a distinct purpose'.[1]

Proposition 2: Reputation protection is not the sole province of defamation. Reputational damage can be taken into account in determining whether information is to be regarded as private for the purposes of the misuse of private information tort.[2]

Proposition 1 allowed the Supreme Court to reject Bloomberg's submission that the courts below were wrong to uphold a general expectation of privacy in police investigations on the basis of the 'human characteristic' to equate suspicion with guilt (i.e. there is 'no smoke without fire').[3] Bloomberg had argued that the Court of Appeal's reasoning adopts the standpoint of an 'unduly suspicious hypothetical reader'.[4] This, it was submitted, runs contrary to established principles of defamation where it is recognised that the ordinary reasonable reader is capable of distinguishing between suspicion and guilt. Emphatically rejecting this argument, the Supreme Court held that privacy and defamation are distinct torts with different purposes. Unlike defamation, which is primarily concerned with false information about the claimant, the purpose of misuse of private information is to 'protect an individual's private life in accordance with article 8 of the ECHR, whether the information is true or false'.[5] It was therefore inappropriate to import defamation's hypothetical reader to the privacy tort.[6]

Proposition 2 lies at the core of the Supreme Court's positive reasons for concluding that, at least in general, a person has a reasonable expectation of privacy in a police investigation about them prior to being charged. Bloomberg had submitted that impact on a claimant's reputation does not play a role in determining the scope of what is private; rather, information is protected by the privacy tort for different reasons (because it is no-one else's concern).[7] The Supreme Court held that this was an unduly restrictive view of article 8 of the ECHR.[8] Article 8, properly understood, encompasses a '"reputational" dimension' which is chiefly protected in the UK by defamation.[9] But reputational effects reaching a certain threshold of seriousness and prejudicing the claimant's private life can also be accounted for when determining whether information is subject to a reasonable expectation of privacy.

Although Propositions 1 and 2 make sense in their respective contexts in ZXC, when they are considered alongside each other, an initial question arises as to their compatibility. How can it be that privacy and defamation are distinct actions which serve different purposes, yet at the same time both protect reputation? A key part of the answer, as argued previously in an article in this journal, is that the concept of reputation is operating in different ways in the two torts.[10] Defamation law, though it is almost universally equated with reputation, is not concerned with protecting a person's reputation generally, i.e. how the individual is thought of by others in society. Rather, the 'core' interest protected by the tort is an aspect of reputation – it is a person's specific interest in not being judged by others on false facts. The privacy tort, by contrast, does protect a person's reputation generally, but such protection only ever occurs in a 'subsidiary' sense. The core interest protected by misuse of private information is an individual's informational privacy.

In the judgment itself, the Supreme Court does acknowledge that the reason that the focus of the two torts is different is because falsity is of central importance in defamation law.[11] Overall, however, there is a marked reluctance on the Court's part to say explicitly that reputation is relevant to the privacy tort in an incidental or subsidiary way. The crux of the Court's reasoning, particularly when endorsing Proposition 2, is that sufficiently serious impacts on a person's reputation can play an important role in determining whether information is subject to a reasonable expectation of privacy.[12] Reputational damage, to this extent, is presented as being inextricable from the privacy interest. And the fact that reputation is primarily protected in the UK via defamation does not make a difference when analysing the scope of misuse of private information.

The Court's reasoning here, in my view, has the capacity to set us down a difficult path. To be clear, there is no issue either in Propositions 1 or 2 or the end result in ZXC that a person generally has a reasonable expectation of privacy in a police investigation about them. The difficulty arises in the way that the Court seeks to analyse the scope of misuse of private information entirely without regard for defamation law, and thereby does not recognise the subsidiary sense in which reputation should operate in the privacy context. The specific issue, though it can be expressed in different ways, ultimately concerns the law's 'coherence', understood broadly as the consistency of rules within a legal system.[13] Defamation is a complex body of law – it represents the way in which the law has developed over time to balance the interests of the claimant and defendant where the defendant's publication has a reputational impact on the claimant (including the requirement of falsity). By failing to acknowledge clearly that reputational injury is not protected per se by the privacy tort because this is the domain of defamation, there is a real risk of running roughshod over the careful and limited way that the law has thus far chosen to protect reputational interests.

There are two likely counterarguments to the line of critique being offered. The first, is that I am being uncharitable. The Supreme Court in ZXC, it will be pointed out, has not said that reputational injury is protected directly by the privacy tort. Instead, it has very clearly stipulated that reputational impact is something to be accounted for in determining whether information is subject to a reasonable expectation of privacy.[14] There is therefore no substantive issue of defamation law being circumvented because of what the Court has held. The second, related counterargument is that the point I am making is overly-academic. Reputational impacts are completely interwoven with what we regard as private. So it is artificial and serves no practical purpose to claim that reputation is only a 'subsidiary' interest protected by misuse of private information.

Like other difficult points in this field, turning our attention to the question of damages can help to address both of these points, and sharpen our understanding of the potential difficulties arising from the Supreme Court's reasoning. As Professor Moreham has commented in the past in relation to privacy damages, '[t]here is nothing like the need to award damages to focus the mind on what legal action is all about'.[15]

In terms of privacy and defamation, the key question on damages which crystalises concerns about the law's coherence is whether damages for reputational harm, which have been historically limited to defamation, can be awarded in a privacy claim. If this were permissible, then the coherence problem seems to loom large: one could potentially recover the primary type of damages available in a defamation claim without pleading and proving defamation at all. At least at its face, the High Court has come to different conclusions in recent years on this precise issue. In some instances, damages for reputational harm have been awarded in addition to other heads of damage following a successful misuse of private information claim.[16] In other cases, the High Court has held that damages for reputational harm are effectively limited to defamation.[17]

In the Supreme Court in ZXC, the judges questioned counsel on remedies for some time in oral argument. But damages were not specifically at issue on appeal, and so in the judgment only the following brief comment was made on this point:

The applicable principles as to damages formulated in this case and in Sicri v Associated Newspapers Ltd may merit consideration in a case in which the issues arise for determination. We have 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, but it is not appropriate to address this in this judgment.[18]

Although the Supreme Court thereby deferred consideration of the damages issue, what we see in these obiter remarks is entirely aligned with the two propositions and general approach of the Court which I have extrapolated above. By saying that damages in privacy cases should not be affected by the law of defamation, the Court appears to be open to the possibility of reputational harm damages being awarded in a misuse of private information claim. This would represent a materialisation of precisely the type of risk I have described of the law becoming incoherent and the requirements of defamation being circumvented through the privacy tort. As argued in more detail previously, damages for reputational harm are a very particular species of damages, which I have labelled 'interference damages', because they are awarded for interference with the 'core' interest which a tort protects.[19] Such damages are only awarded when the tort has been properly pleaded and proved, because it is only in such circumstances that courts can guarantee that the requirements which the law has laid down for the protection of the 'core' interest have been satisfied.

Not everyone, it should be noted, shares my pessimism. It has been suggested, both in the High Court in Sicri[20] and in insightful commentary in this journal,[21] that no issue of circumventing defamation principles arose in the main police investigation case where reputational harm damages were awarded in a privacy claim i.e. Richard v BBC. This is because Richard was a case which, on the facts, could have also been pleaded successfully in defamation. With respect, there is an important point not accounted for in coming to that conclusion which seems to complicate matters. Defamation has a much shorter limitation period than other torts (one year rather than six), precisely because the view has been taken that one should seek to vindicate attacks on their reputation swiftly.[22] Moreover, there are good reasons to think that Richard did not bring a defamation action within time for strategic reasons.[23] By allowing reputational harm damages to be recovered later in time in a privacy claim, the strict limitation requirements of defamation law were indeed bypassed in Richard.[24] And we should be alive to that problem in future cases as well if we go down the route which the Supreme Court leaves open in ZXC.

As a final point, there is another deeper issue at play here which is revealed through a consideration of damages. If it's truly the case that reputation is inextricable from the privacy interest and cannot be regarded as a 'subsidiary' interest, then it is odd that injury to reputation could be isolated and compensated separately at the damages stage. Indeed, to award separate damages for harm to reputation would have to amount to compensating the claimant for the same reputational impacts twice. This is because the misuse of private information tort has its own form of interference damages, known as damages for 'loss of control of information', awarded for interference with the privacy interest itself, without proof of consequential loss.[25] As I see it, there is no issue with reputational impacts (in the general sense) being a factor which courts take into account in determining what information is to be regarded as private. But, at the compensation stage, any reputational impacts considered in that way are then subsumed into the damages for loss of control of information. To additionally award reputational harm damages on top of damages for loss of control of information involves double-counting. In the end, what this confirms is that not properly accounting for the interplay between privacy and defamation is not only a theoretical problem. The issue has important practical consequences as well.

To sum up, on the main issue in ZXC about whether a person has a reasonable expectation of privacy in a police investigation about them, the Supreme Court was correct to reach an affirmative conclusion. But unless care is taken in lower courts, the Supreme Court's approach of analysing the privacy tort without regard to defamation is one that could lead to significant difficulties down the track.

Disclosure statement

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

1 ZXC v Bloomberg LP [2022] UKSC 5, [2022] AC 1158 [111] ('ZXC'). 2 ibid [125]. 3 See ZXC v Bloomberg LP [2020] EWCA Civ 611, [2021] QB 28 [82]. 4 ZXC (n 1) [74](b), [110]. 5 ibid [111]. 6 ibid [112]. 7 ibid [74(c)], [114]. 8 ibid [115]–[124]. 9 ibid [125]. J Hariharan, 'Damages for Reputational Harm: Can Privacy Actions Tread on Defamation's Turf?' (2021) 13 Journal of Media Law 186, 198–202. ZXC (n 1) [111]. ibid [125]. The notion of coherence in the law has been the topic of rich discussion which it is impossible to do justice to here. At the heart of various accounts, however, is the idea that coherence is about a set of rules being consistent or non-contradictory. See eg R Grantham and D Jensen, 'Coherence in the Age of Statutes' (2016) 42 Monash University Law Review 359, 362–64. The authors, drawing on a range of material, write: 'In its most basic sense, coherence denotes simply that a set of rules is coherent if it is free from contradiction'. See particularly ZXC (n 1) [125]. N Moreham, 'Compensating for Loss of Dignity and Autonomy' in J Varuhas and N Moreham (eds), Remedies for Breach of Privacy (Hart Publishing 2018) 140. E.g.Richard v BBC [2018] EWHC 1837 (Ch), [2019] Ch 169 [334]–[346]. E.g.Sicri v Associated Newspapers Ltd [2020] EWHC 3541 (QB), [2021] 4 WLR 9 [145]–[158] ('Sicri'). At [158], Warby J (as he then was) says: 'it does seem to me 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'. ZXC (n 1) [79]. Hariharan (n 10) 202–6. Sicri (n 17) [163]. R Craig and G Phillipson, 'Privacy, Reputation and Anonymity until Charge: ZXC Goes to the Supreme Court' (2021) 13 Journal of Media Law 153, 181–84. See Austin v Newcastle Chronicle & Journal Ltd [2001] EWCA Civ 834 [38]; R Parkes and G Busuttil (eds), Gatley on Libel and Slander (13th edn Sweet & Maxwell, 2022) para 20.009. It seems likely that Richard, well advised as he was, would have chosen not to bring a defamation action because the police investigation into him remained on foot within the one year period. Warby J in Sicri (n 17) [159] and Craig and Phillipson (n 21) footnote 131 do acknowledge, at other points in their analysis, that defamation has a shorter limitation period than misuse of private information. It should also be noted that under s 32A of the Limitation Act 1980, a court can disapply the one year limitation period where this is just and equitable. The point being made here is simply that this is a relevant factor which should complicate the way we understand Richard, particularly Warby J's statement in Sicri (at [163]), that 'Sir Cliff would have had an unanswerable claim in libel'. At the very least, if the claim was brought out of time, he would have had to establish that the court should apply the discretionary exclusion in s 32A, and likely bring evidence based on the factors enumerated in s 32A(2). Such damages were first recognised in Gulati v MGN Ltd [2015] EWHC 1482 (Ch), [2016] FSR 12. Mann J's approach was affirmed on appeal: Gulati v MGN Ltd [2015] EWCA Civ 1291, [2017] QB 149. For further analysis on the nature of these damages, see Hariharan (n 10) 190–91, 203–4.

By Jeevan Hariharan

Reported by Author

Jeevan Hariharan is a Lecturer (Assistant Professor) in Private Law at Queen Mary University of London.