The ‘silly season’ is supposed to be over and the most important constitutional case for many years is currently before the Supreme Court, but these matters did not stop The Sun from publishing on 17 September 2019 a grossly sensationalist and intrusive article about Ben Stokes, the England cricketer, and his family.
This was on its front page of its print edition and prominently online under the headline “STOKES’ SECRET TRAGEDY Ashes hero Ben Stokes’ […redacted…] three years before England star’s birth”. It is sufficient to say that the redacted part of the headline referred to a tragic event that affected Mr Stokes’ family some 31 years ago.
Understandably, Ben Stokes was furious by the flagrant intrusion into his family’s private life and issued his own statement on Twitter in response. In it, he stated:-
“To use my name as an excuse to shatter the privacy and private lives of – in particular – my parents, is utterly disgusting. I am aware that my public profile brings with it consequences for me that I accept entirely. But I will not allow my public profile to be used as an excuse to invade the rights of my parents, my wife, my children or other family members. They are entitled to a private life of their own. The decision to publish these details has grave and lifelong consequences for my mum in particular.”
Part of Ben Stokes’ statement has now been added to the online version of the article together with a response from a spokesperson for The Sun who stated:-
“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 co-operation 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.
The Sun has huge admiration for Ben Stokes and we were delighted to celebrate his sporting heroics this summer
He was contacted prior to publication and at no stage did he or his representatives ask us not to publish the story.”
The Sun’s response appears to foreshadow the likely arguments it would raise if a privacy claim was brought against it, one of which is that the information is already in the public domain, or at least widely known in New Zealand.
There are two fundamental flaws with this argument. Firstly, the content of the article makes clear that this is a story that The Sun did not expect its own readers to know about. This is borne out by the headline itself which refers to the story as a ‘secret’ tragedy. The word secret is also repeated twice in the body of the article. Furthermore, The Sun explicitly acknowledges that Ben Stokes has never “spoken publicly” about the matter and that the main source of the story, Jacqui Dunn, the daughter of Andrew Dunn, was doing so for the “first time”. Even on The Sun’s own case, then, this was a matter which had been kept private by all those involved.
Secondly, and perhaps more surprisingly, however, is that The Sun knows, or ought to know, that the public domain argument, in the terms it has been advanced in its response set out above, is almost bound to fail if it is raised in a privacy claim brought against it. This is because its own publisher, News Group Newspapers, was the defendant in the seminal Supreme Court case of PJS v NGN  UKSC 26 where publication of the private information the claimant sought to protect by way of an injunction had already been published widely (and far more recently than in the Stokes case) in other jurisdictions. The Supreme Court still held, however, in a misuse of private information claim, that unrestricted publication by the English media in hard copy as well as their own websites would be actionable because it would significantly add to the intrusiveness and distress felt by the claimant and his partner. The same reasoning is likely to apply here, although now in the context of a claim for damages rather than an injunction (an injunction to prevent ongoing publication online would likely now serve no practical purpose since the information is already widely known within the jurisdiction).
It is unclear about when The Sun contacted Ben Stokes and/or his representatives prior to publication and, if so, in what terms. In any event, the fact that a subject of a story does not object to its publication does not give The Sun’s journalists carte blanche to say what they like. As the Supreme Court noted in PJS, “it is one thing for what should be private information to be unlawfully disseminated; it is quite another for that information to be recorded in eye-catching headlines and sensational terms in a national newspaper”. It appears that The Sun has not yet learnt its lesson from PJS or, as Ben Stokes put it in his own statement, was “focussed only on chasing sales with absolutely no regard for the devastation caused to lives as a consequence.” This was, on any rational analysis, irresponsible and insensitive journalism in its most conspicuous form.
The Stokes article was published days after former rugby player Gareth Thomas disclosed that he was HIV positive. Thomas has subsequently said that he was forced to make the disclosure after an unspecified tabloid newspaper approached him and threatened to publish his diagnosis. In an impassioned video Mr Thomas explained how a journalist had knocked on his parents’ door and informed them that their son had HIV, taking away his opportunity to do this himself.
These incidents raise serious concerns that the tabloid press has slipped back to its old ways and that the lessons of the Leveson Inquiry have been long forgotten or that editors now think it is safe to disregard them. Perhaps it will require a bold claimant to issue a privacy claim seeking exemplary damages (intended to punish the defendant for its oppressive action) or an account of profits (requiring the defendant to pay the claimant the profits made as a result of the wrongdoing) – both of which were left open by the Supreme Court in PJS – in order to make editors change their ways.
This post originally appeared on the Brett Wilson Media Law Blog and is reproduced with permission and thanks.