In a landmark ruling the Supreme Court has held that individuals have, in general, a right to anonymity when arrested or under criminal suspicion or investigation prior to being charged. They definitively confirmed that a reasonable expectation of privacy exists in respect of information relating to an investigation and this “applies regardless of the nature of the suspected offence or the public characteristics of the suspect.” The starting point, therefore, is that publication of such detail is a misuse of an individual’s private information which would likely lead to significant reputational damage.

The Supreme Court found that ZXC’s position as businessman at a large company did not negatively affect his right to privacy and in fact “ordinarily we would anticipate greater damage to a businessperson actively involved in the affairs of a large public company than to a private individual.” Crucially, they also stated that the Article 8 right to respect for private and family life encompasses reputation, which would be unjustifiably damaged by the publication of the fact that a person is under investigation, and can include professional or business activities.

While anonymity before charge has been the position in several European Countries for many years, it was typically not the case in England until the well-publicised decision in Cliff Richard v BBC and earlier decisions in the ZXC case. The highest Court in the jurisdiction has now agreed with that principle and whilst there are some exemptions to the general rule, these are likely to be relatively limited.