How the UK’s Reasonable Expectation of Privacy Deters the Press from Naming Prominent Accused Individuals Before They Are Charged

On January 5th, 2025, news broke that the English Metropolitan Police had “passed a full file of evidence about a Premier League footballer accused of rape to the Crown Prosecution Service.”[1] The Crown Prosecution Service will now decide whether to pursue charges against this player.[2] The article notes that the player is in his thirties, was initially arrested for this incident in July 2022, and continues to play for his English Premier League team.[3] However, the article states they will not name the player for “legal reasons.”[4]

In the United Kingdom, there is now a well-established line of case law dictating that people arrested have a prima facie right to remain anonymous until they are formally charged with the crime.[5] As a result, if a media outlet names someone before they are charged, that individual can likely sue for the tort of misuse of private information (MPI).[6]

The UK Supreme Court recently clarified their stance on the expectation of privacy for people accused of crimes in Bloomberg LP v. ZXC. There, Bloomberg published a story about an American businessman, referred to as ZXC to protect their anonymity, who was under investigation by a United Kingdom Law Enforcement Body for fraud, bribery, and corruption.[7] Here, the UK Supreme Court affirmed the lower court’s ruling that Bloomberg’s article naming ZXC violated their privacy rights.[8]

In an MPI claim against a media organization, courts balance the accused individual’s right to privacy with the organization’s right to freedom of expression.[9] In ZXC, the lower court considered the reputational harms associated with being accused of a crime to ground their analysis of the reasonable expectation of privacy.[10]

Conversely, their analysis of the press’s freedom of expression rights was notably narrow. Bloomberg argued that naming the defendant was within their rights because it would serve the public interest by bringing a “wider consciousness” about the accused acts and that the consequences would deter others.[11] However, in their decision, the lower court disregarded these justifications for Bloomberg’s expressional rights. Instead, the court reasoned that a media organization would have a strong expressional rights-based claim if publishing the confidential details served the public interest by furthering the media’s role as a “watchdog” over the government.[12] For example, the court argued that a media outlet could be justified in releasing confidential information if they highlighted “perceived inadequacies in the investigation, undue delay or concern over the direction the investigation was taking.”[13] Consequently, the court concluded that the Bloomberg article did not further that type of public interest by revealing ZXC’s confidential information.[14] Therefore, the court held that ZXC’s privacy rights outweighed Bloomberg’s expressional rights.[15]

As a result of the ZXC ruling, it appears that UK courts will find that an individual accused of a crime but not yet charged can reasonably expect to be protected from having their name published in the press absent some countervailing public interest. In other words, if a plaintiff brought an MPI claim against a news outlet for publishing information about their arrest, the reasonable expectation of privacy would likely be the “starting point” of the court’s analysis.[16]

On the one hand, proponents argue that the presumption of innocence before proven guilty would erode if UK law did not have such a robust protection of the accused’s privacy rights.[17] They emphasize that publishing a false criminal accusation can decimate a person’s reputation and that the law should aim to prevent such damage.[18] Yet, others contend that the UK’s reasonable expectation of privacy for people accused of crimes may dissuade victims from telling other people about what happened.[19] Additionally, they fear it may “chill the investigation of suspected wrongdoing by the media or other actors, especially where powerful people are involved.”[20] As a result, some argue that people accused of crimes can continue in their public-facing roles behind the veil of anonymity that the law provides.[21]

In the case of the Premier League player, a news outlet would have to demonstrate circumstances in which the reasonable expectation of privacy would not apply in order to publish their name before they are charged. Here, the reputational harms associated with being accused of a violent, criminal act like rape are even greater than ZXC’s accusation of financial crimes. Yet, simply naming the player does not seem to adhere to the “watchdog” role the UK Supreme Court recognized as a valid justification for the press’s free expression in ZXC. Now, it may be the case that, given the violent nature of the player’s alleged crime, the court may evaluate the expressional rights of the press differently. Nonetheless, any outlet that publishes his name before a charge is brought exposes itself to a potentially expensive legal battle.[22]

Ultimately, the United Kingdom must decide whether their privacy laws strike the right balance. Overall, the UK Supreme Court should provide more clarity about when the reasonable expectation of privacy no longer exists so that media outlets can know when they may publish details about an investigation of a public figure before that person is charged.

Joshua Gottlieb is a staff member of Fordham International Law Journal Volume XLVIII.

[1] James Olley, Prem player accused of rape: Police pass file to CPS – sources, ESPN (Jan. 8, 2025, 11:27 AM), https://www.espn.com/soccer/story/_/id/43334619/prem-player-accused-rape-police-pass-file-cps-sources.

[2] Id.

[3] Id.

[4] Id.

[5] Robert Craig & Gavin Phillipson, Privacy, reputation and anonymity until charge: ZXC goes to the Supreme Court, J. of Media L. 1, 2 (2022).

[6] Id.

[7] Bloomberg LP v. ZXC, [2022] UKSC 5, ¶ 9.

[8] Id. at ¶ 146.

[9] Id. at ¶ 26.

[10] ZXC v. Bloomberg L.P., [2019] EWHC 970 (QB), ¶ 125.

[11] Id. at ¶ 109.

[12] Id. at ¶ 128.

[13] Id.

[14] Id.

[15] Id. at ¶ 132.

[16] Bloomberg, [2022] UKSC 5 ¶ 144.

[17] Craig & Philipson, supra note 5 at 28.

[18] Craig & Philipson, supra note 5 at 4.

[19] N.A. Moreham, Police investigations: privacy, confidence and public duties, UK Const. Law Ass’n (February 18, 2021), https://ukconstitutionallaw.org/2021/02/18/n-a-moreham-police-investigations-privacy-confidence-and-public-duties/.

[20] Id.

[21] Esther Webber, How British libel law lets bad people get away with bad things, Politico, (December 20, 2023), https://www.politico.eu/article/uk-libel-privacy-law-defamation-westminster/.

[22] Id.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.