On 17 September 2019, The Sun published a story about the England cricketer Ben Stokes and his family. This featured on the front page of its print edition and is available online under the headline ‘STOKES’ SECRET TRAGEDY Ashes hero Ben Stokes’ brother and sister were killed by his mum’s jealous ex, three years before England star’s birth.’

Essentially, the article told the story of how Stokes’ siblings were murdered in New Zealand in 1988 by his mother’s ex-boyfriend.

Unsurprisingly, Stokes responded to the publication of the article via his Twitter account. In it, Stokes says, inter alia, that:

“It is hard to find words that adequately describe such low and despicable behaviour, disguised as journalism. I cannot conceive of anything more immoral, heartless or contemptuous to the feelings and circumstances of my family…[T]he [S]un think[s] it is acceptable to sensationalise our personal tragedy for their front page.”

Stokes finishes his tweet by stating:

“This is the lowest form of journalism, focussed only on chasing sales with absolutely no regard for the devastation caused to lives as a consequence…The article also contains serious inaccuracies which has compounded the damage caused. We need to take a serious look at how we allow our press to behave.”

A spokesperson for The Sun used two arguments to defend the newspaper’s publication of the article. Firstly, they said that the murders of Stokes’ siblings were widely covered in the New Zealand media. Secondly, the article had been published with the cooperation of another family member, Jacqui Dunn, who is the killer’s other daughter.

Arguments relating to the concept of public domain and, in particular, analysis of the Supreme Court’s decision in PJS v News Group Newspapers [2016] UKSC 26, and privacy law generally, have been expertly dealt with in two previous Inforrm posts from the Brett Wilson Media Law Blog and Rebecca Moosavian.

The purpose of this post is to briefly consider a wider issue that was alluded to in Stokes’ tweet; that is, the notions of journalism and responsible journalism. These are two particular issues that I have written widely about in the context of citizen journalists (for example, see: P. Coe ‘(Re)embracing social responsibility theory as a basis for free speech: shifting the normative paradigm for a modern media’, Northern Ireland Legal Quarterly (2018) 69(4) 403-431; P. Coe, ‘Redefining ‘media’ using a ‘media-as-a-constitutional-component’ concept: An evaluation of the need for the European Court of Human Rights to alter its understanding of ‘media’ within a new media landscape’, Legal Studies (2017) Vol. 37, No. 1, 25-53).

I have previously argued that there are two categories of free speech: (i) the personal right to freedom of expression and; (ii) media freedom, and that the latter ought to be treated differently to the former, in that this ‘enhanced’ right affords media entities privileged protection over and above non-media actors and, as a result, carries with it concomitant duties and responsibilities.

To my mind, in a world where a citizen journalist can publish stories of real value and public interest in the same way as the traditional media, and where some members of the traditional media continue to purposefully treat the private lives of those in the public eye as a highly lucrative commodity by exposing private aspects of their lives, or engaging in entertainment and sensationalism for commercial gain, in much the same way as Stokes alleged The Sun had done (and, it is recognised that citizen journalists are by no means immune to this behaviour either), the appropriate way to determine who is subject to media freedom is to take a functional rather institutional approach.

Under such an approach the ‘actions’ of the ‘journalist’, such as reporting on a matter of public interest, and their behaviour and the standards they adhere to whilst doing this, rather than their education, training or employment, determines whether they are, in that particular instance, acting as media and subject to the enhanced right.

This approach raises two questions, which I will briefly deal with in turn. Firstly, what do the ‘concomitant duties and responsibilities’ look like?

The duties and responsibilities include: (i) the extent to which the journalist is reporting on a matter of public interest; (ii) the journalist’s behaviour or conduct pre-publication and; (iii) whether the journalist acted in good faith.

Much has been said, both by the courts and academic commentators, on the notion of public interest, particularly in the context of celebrities, and how this is balanced with the right to privacy (for example, see Paul Wragg’s excellent article ‘A Freedom to Criticise? Evaluating the Public Interest in Celebrity Gossip after Mosley and Terry’ (2010) 2(2) Journal of Media Law 295-320) that I do not intend to rehearse here. Suffice to say, in the context of Ben Stokes, and setting the public domain arguments to one side, this seems to me to be a story that may interest the public, but may not be in the public interest, particularly when weighed up against the privacy rights of Stokes’ family members who are not in the public eye and have not courted publicity.

In respect of a journalist’s pre-publication behaviour, the media are expected to abide by certain standards of conduct when gathering, editing and imparting information. This requirement is particularly significant where the journalist discloses information that may negatively impact on an individual. Consequently, the European Court of Human Rights has consistently held, in defamation claims for example, that the privileged protection afforded by media freedom is subject to the media acting with transparency (see: Fatullayev v Azerbaijan [2010] App. no. 40984/07) and on an accurate factual basis (see, for example: Fressoz and Roire v France [1999] App. no. 29183/95 [54]; Bergens Tidende and others v Norway [2000] App. no. 26132/95 [53]).

Of course, requiring a journalist to ensure that each factual statement they publish is correct could have a chilling effect on free speech that would, in turn, negatively impact on public discourse. As a result, in certain situations, the media may deviate from the requirement to verify the factual information they disseminate. However, the ability to do this is contingent upon the subject matter. If individuals’ rights are engaged, such as the case with Stokes’ family members, then regardless of the situation, the journalist must take all reasonable steps to verify the accuracy of the information prior to publication. In Stokes’ case he argues in his tweet that there are “serious inaccuracies” in The Sun’s article which have “compounded the damage caused.”

Finally, the European Court of Human Rights has consistently held that journalists must act in good faith (see, for example: Bladet Tromsø and Stansaas v Norway [1999] App. no. 21980/93 [65]). This includes the veracity of the statement and the integrity of the motivation of the publisher. The ‘veracity of the statement’ component is relatively uncontroversial. Pursuant to Strasbourg jurisprudence the media must not intentionally distribute statements that are false and harmful, or act with a negligent disregard for the truth (see: Alithia Publishing Company Ltd and Constantinides v Cyprus [2008] App. no. 17550/03 [66]; Gutiérrez Suárez v Spain [2010] App. no. 16023/07 [38]).

In respect of the publisher’s motivations, Strasbourg case law indicates that the media must not publish statements based on improper motives or intentions (see for example: Nilsen and Johnsen v Norway [1999] App. no. 23118/93 [50]) such as, purely commercial interests. In Stokes’ view The Sun’s article contains serious inaccuracies and its motivation for publishing the story was to ‘chase sales.’ Whether the report is inaccurate and whether the newspaper intentionally distributed false information, or was negligent as to capturing the truth, remains to be seen. However, if either or both allegations are true then this responsibility has not been met.

By way of conclusion, I have a second question: what happens to the ‘journalist’ or media publication if these duties and responsibilities are not met, as Stokes argues is the case with The Sun’s article?

Legal support for the imposition of these duties and responsibilities derives from the ‘duties and responsibilities’ clauses found in Articles 10(2) of the European Convention on Human Rights and 19(3) of the International Covenant for Civil and Political Rights. Unlike any other Convention or Covenant rights, these Articles expressly provide that the exercise of freedom of expression ‘carries with it duties and responsibilities’. Although this qualification applies equally to media and non-media actors, the chief purpose of the qualification is to provide Member States with a mechanism for preventing the modern mass media from abusing its power. Thus, the operation of media freedom in any given situation, and the extent to which the protection it affords is applied, is dependent upon whether the journalist has carried out its ‘duties and responsibilities’ in the particular circumstances. In situations where they have fulfilled these obligations, the extent of the protection afforded by media freedom is significantly lowered and, as a result, interference with the right is, usually, justified.

In the context of Stokes’ case, this is all a bit late in the day, as the article has already been published in print and widely distributed online. Consequently, rather than seeking injunctive relief to prevent publication (and ongoing publication online, as this would serve little or no purpose) Stokes’ remedy will lie in a claim for damages. It seems that any successful claim for damages is likely to be received as a pyrrhic victory by Stokes and his family. It is obvious that the damage caused by the publication will far outweigh any level of compensation that can be awarded, yet The Sun will no doubt have made a significant amount of money from the story.

Echoing the concerns raised by the Brett Wilson article I refer to above we need to ensure that the media, whether they be citizen journalists or members of the institutional press, are adequately protected and are enabled to exercise their right to free speech and media freedom, but are also reminded of the responsibilities that come with their privileged position and the power that this provides them.

Peter Coe, Barrister and Lecturer in Law, University of Reading, Research Associate, Information Law and Policy Centre, Institute of Advanced Legal Studies, University of London, Editor-in-chief of Communications Law.

This post will appear in the December issue of Communications Law and is published here with kind permission.