Privacy, reputation and anonymity until charge: ZXC goes to the Supreme Court

Abstract

This article seeks to defend the emergent consensus that suspects should be entitled to anonymity until charge and that the tort of misuse of private information (‘MPI') is the appropriate action to protect this right. It systematically addresses Nicole Moreham’s argument, in this journal, that breach of confidence, rather than MPI, should ground such claims, and that the case law to date risks awarding damages for harm to an undeserved reputation. The authors argue that multiple sources of law and theoretical accounts of privacy confirm this information is properly treated as private. In contrast, breach of confidence would provide an inadequate remedy. In response to the concerns on reputational harm, it argues that, in practical terms, the tort of defamation need not be undermined, as claimed. It further contends that the presumption of innocence can act as a guiding light in resolving the problems raised at the level of principle.