18 Oct PRIVACY – BEN STOKES AND MOTHER SUE THE SUN FOR BREACH OF PRIVACY

England cricketer Ben Stokes and his mother Deborah have issued a claim against the publisher of The Sun for the invasion of their privacy in relation to a front-page story which dredged up details of an historic family tragedy.

The claim was issued in the High Court at the end of September, less than two weeks after publication of the story, which detailed events in New Zealand 31 years ago surrounding the murder by Deborah Stokes’ ex-husband of their two children before he went on to kill himself.

Stokes’ immediate response at the time of publication was to take to Twitter to criticise the piece as “the lowest form of journalism, focused only on chasing sales”, and to urge people to respect his family’s privacy and right to home life.

He wrote: “To use my name as an excuse to shatter the privacy and private lives of – in particular – my parents is utterly disgusting.”

But now Stokes appears to be the latest high-profile claimant to respond to unwanted tabloid coverage through the courts, following action taken against the publishers of the Mail on Sunday and the now-defunct News of the World by Meghan, Duchess of Sussex, and Prince Harry.

The newspaper defended its coverage at the time, saying:

“The Sun has the utmost sympathy for Ben Stokes and his mother but it is only right to point out the story was told with the cooperation of a family member who supplied details, provided photographs and posed for pictures. The tragedy is also a matter of public record and was the subject of extensive front-page publicity in New Zealand at the time.”

Despite this stance, the story was subsequently taken down from the newspaper’s website and tweets from its account referring to it were removed.

The claim is likely to raise a number of interesting media law issues.

Before and in the aftermath of the introduction of the Human Rights Act and the associated development of the law of misuse of private information, the presence of information in the public domain was generally thought to be a complete answer to any claim for breach of confidence or privacy.

The statement by The Sun reflects this principle and, along with its reliance on the involvement of a family member who was telling their own story, indicates how it might defend any claim.

But developments in the law of privacy, including a recognition that it protects against intrusion as well as the loss of secrecy, and that an expectation of privacy which did not exist initially may develop with the passage of time (what’s known online as the “right to be forgotten”) mean that the fact information was once in the public domain may no longer be enough to defeat a claim.

The Sun also referred in its statement to a lack of objection to the story when Stokes was contacted before publication.

A failure to provide a denial or comment might weigh against a claimant in a defamation claim, where a media publisher relies on “responsible journalism”, but the relevance of a failure to comment is less clear-cut where the claim is in privacy.

The story attracted widespread public criticism. If the courts take a similarly dim view of it, the case may have a significant impact on wider journalistic activity.