A GAIN IS AS GOOD AS A LOSS … TO A BOUND FIDUCIARY

Abstract

by the parties – lower courts would do well to heed the warning. While the judgment in ZXC could be described as a “win” for privacy interests, a “general principle” or “starting point” of a reasonable expectation of privacy in respect of information relating to pre-charge criminal investigations does not preclude journalists from conducting their own inquiries into a person’s alleged misconduct and reporting the outcome of those inquiries. As the trial judge, Court of Appeal and Supreme Court emphasised, the article at the centre of the proceedings in ZXC merely repeated the content of the LoR. If, instead, the article concerned ZXC’s alleged wrongdoing based on Bloomberg’s own investigations, this would have been a “distinct and separate situation” (at [78]). Given that law enforcement authorities have themselves adopted a uniform policy of not disclosing information regarding pre-charge investigations, the approach espoused by the lower courts and endorsed by the Supreme Court in ZXC is an eminently reasonable compromise between the conflicting Article 8 and 10 interests in such cases. Any contention that the decision unjustifiably curtails expression that is in the public interest ignores the very clear message from the Supreme Court that each case turns on its own facts and independent investigations by journalists may well fall outside the remit of the general rule.