![handle is hein.journals/joomaw12 and id is 1 raw text is:
JOURNAL OF MEDIA LAW Routledne
2020, VOL. 12, NO. 1, 1-12
https://doi.org/10.1080/17577632.2020.1760473 Taylor &Francis Group
COMMENT
Police investigations, privacy and the Marcel principle
in breach of confidence*
N. A. Moreham
Faculty of Law, Victoria University of Wellington, Wellington, New Zealand
A number of recent English decisions have supported the idea that, in general,
a person will have a reasonable expectation of privacy in respect of a police
investigation into his or her conduct (up to the point of charge).' In a
recent article - 'Privacy, reputation and allegations of wrongdoing: why
police investigations should not be regarded as private' - I challenged that
proposition.2 That article argued that it is important that courts deciding
claims in respect of information about police investigations consider carefully
how the maturing misuse of private information tort should fit alongside
other actions which protect personal information. More specifically, it
argued that it does not follow from the fact that information about police
investigations is confidential that a claimant should have a reasonable expec-
tation of privacy in respect of it. And, it said, it disrupts both the law of privacy
and defamation to suggest that information should be treated as private
simply because its revelation has a detrimental impact on the claimant's repu-
tation. The article concludes by saying that since courts have, rightly, been
developing a general principle that a person will not have a reasonable
CONTACT N. A. Moreham, Victoria University of Wellington.
*As this article was going to press, the Court of Appeal upheld the lower court judgment in ZXC (see
further, ZXC v Bloomberg [2020] EWCA Civ 611). The Court held that 'those who have simply come
under suspicion by an organ of the state have, in general, a reasonable and objectively founded expec-
tation of privacy in relation to that fact and an expressed basis for that suspicion' (ibid [82]).
'See in particular, ZXC v Bloomberg LP [2019] EWHC 970 (QB) [119] ('ZXC') and [124] and Richard v British
Broadcasting Corporation [2018] EWHC 1837 (Ch), [2018] 3 WLR 1715 [248]. See also Hannon and Dufour
v News Group Newspapers Ltd [2014] EWHC 1580 (Ch), [2015] EMLR 1 (in which the proposition was held
to be arguable in a strike out application but the matter was not decided); ERY v Associated Newspapers
Ltd [2016] EWHC 2760 (QB), [2017] EMLR 21 especially [65] (where the point was conceded in an appli-
cation about continuation of an interim injunction); Khan v Bar Standards Board [2018] EWHC 2184
(Admin) [47] (in which support for the proposition was expressed in a judicial review of disciplinary pro-
ceedings); and ZXC v Bloomberg LP [2017] EWHC 328 [35] (an interlocutory application in which the clai-
mant was held to have a reasonable expectation of privacy in respect of information contained in a
formal law enforcement document (although it was outweighed by the public interest in the material)).
Further, in PNM v Times Newspapers Ltd [2014] EWCA Civ 1132, [2014] EMLR 30 [41] the Court of Appeal
accepted there was material providing 'some support' for the proposition that there should be more
careful consideration of an accused person's rights than there has been in the past but did not
decide the point.
2NA Moreham, 'Privacy, reputation and allegations of wrongdoing: why police investigations should not
be regarded as private' (2019) 11 JML 142.
© 2020 Informa UK Limited, trading as Taylor & Francis Group](ViewImageLocal?handle=hein.journals/joomaw12&div=1&collection=&method=preview&ext=.png&size=3)
What Is HeinOnline?
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most
Contact us for annual subscription options:
Already a HeinOnline Subscriber?
profiles profiles most