Judge rejects businessman's privacy bid to kill Bloomberg report of fraud and corruption inquiry

The High Court has rejected a privacy and data protection claim against Bloomberg over its report of a legal investigation into a businessman.

The court refused the man’s bid to get the article taken down because it was ruled to be a serious piece of journalism on a serious topic. It also said the publisher was protected from action under the Data Protection Act because it was covered by the journalism exemption.

Mr Justice Garnham said that in 2013 media organisations, including Bloomberg, reported an announcement by the law enforcement agency that it was conducting a criminal investigation into a company and noted that it was focusing on “allegations of fraud, bribery and corruption relating to the activities of the company or its subsidiaries”.

There was further media coverage, and in late 2016 Bloomberg published the article which the man, referred to as ZXC, now wanted removed.

The businessman, said the judge, had argued that he had a reasonable expectation of privacy in relation to the investigation and to a confidential document from the law enforcement body.

But Bloomberg argued that there was no reasonable expectation of privacy in relation to the parts of the article in question which identified ZXC, and that ordering the article to be removed from the website would affect its right to freedom of expression under Article 10 of the European Convention on Human Rights.

In addition, the article had already been widely available to the public – Bloomberg had 300,000 subscribers, and there was open access to the piece in question on its website.

Mr Justice Garnham said that in his view, the information extracted from the formal law enforcement document was undoubtedly “private”, given that no party to it, had suggested that they wanted it made public, and its subject, ZXC, strongly objected to that happening.

The judge said the factors which counted towards whether ZXC had a reasonable expectation of privacy included that he was a businessman, not a celebrity courting publicity; the formal law enforcement document was highly confidential, and its contents seemed to have been leaked to the defendants in breach of confidence; the article concerned the details of investigations by the law enforcement agency which it had not concluded or made public; ZXC had not been arrested, and was not being questioned in a public place; and he did not consent to the publication of the information in the article.

“Those features lead me to conclude that the claimant would, entirely reasonably, have expected that the information contained in the formal law enforcement document would remain private to the law enforcement agency and the other party receiving it,” he said.

But his privacy claim was also weakened by a number of factors – he had made no attempt to restrain publication of an earlier article Bloomberg published in mid-2016, and in fact his solicitor had spoken to the article’s author with a view to putting ZXC’s stance on the record.

Information that ZXC was being investigated was already in the public domain, put there by the other news organisations, and it was also some nine days before he indicated objection to the article – which was also reproduced by other news organisation – during which time it would undoubtedly have been widely read online.

In addition, ZXC had not filed any witness statements of his own giving details of the effects the continued presence of the article on Bloomberg’s website was having on him or his family.

The judge said: “This article constituted a serious piece of journalism about a serious topic; a law enforcement investigation into offences of bribery, fraud and corruption. The offences being investigated were alleged to have been committed by, or on behalf of, companies with involvement of their senior officers.

“It may be that the publicity produced by this article might encourage other witnesses to come forward to assist the investigation.”

 

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