By Jonathan Copping, Lawyer, Stone King, London, UK
On 17 September 2019, ‘The Sun’ newspaper published a story relating to events regarding Ben Stokes’ family that took place 31 years ago, before Ben Stokes was born. The article was published two weeks’ after Ben Stokes’ innings that gave England a one-wicket victory over Australia in the Ashes.
In response to the publication, Ben Stokes released a strongly worded statement on ‘Twitter’, in which he condemned the article for using his name as an excuse to shatter the privacy and private lives of members of his family,
‘The Sun’ has since removed the article from its website and deleted all ‘tweets’ from its ‘Twitter’ account about the article; however, at the time of the publication, it released a statement attempting to justify its publication: “The tragedy is also a matter of public record and was the subject of extensive front page publicity in New Zealand at the time”.
In response to the publication, Ben Stokes, together with his Mother, have issued proceedings in the High Court, on 10 October 2019, against the publisher of ‘The Sun’, News Group Newspapers.
Details of the substance of the proceedings are unknown; however, they will most likely centre around a breach of privacy claim, the basis of which is usually the misuse of private information. Privacy law has been developed in England and Wales in accordance with Article 8 of the European Convention on Human Rights (ECHR), i.e., the right to respect for private and family life.
Misuse of private information is a tort (a civil wrong) and a detailed development of the case law regarding the protection against intrusion and the right to respect for private life has led to two core components being established:
- There must be unwanted access to private information. In other words, the unauthorised use of information must be information which the person or persons to whom it relates can have a reasonable expectation of privacy; and
- There must be unwanted intrusion into one’s personal space. This is particularly important as it means that information which is subject to an interim non-disclosure order may, despite the order, be available on the Internet. However, its existence on the Internet, will not prevent a claim for misuse of private information being successful.
In order to be successful with a claim for misuse of private information, the claimant must be able to prove that the person to whom the disclosed information relates, had a reasonable expectation of privacy. In the event that there is any doubt about the information being private, the Court will assess whether disclosure of the information about the person would give substantial offence to a person of ordinary sensibilities placed in similar circumstances to the claimant
There are a number of legal defences that are available to parties defending a misuse of private information claim.
The most common defence is that the claim for privacy is outweighed by a right to freedom of expression under Article 10 of the ECHR. This defence is commonly based on the notion that the disclosure of the information is in the public interest, which is a difficult legal concept to define and apply in practice. As one English Judge has remarked: ‘what interests the public is not necessarily in the public interest!’
If the claim brought by Ben Stokes and his Mother is successful, the range of remedies that the Court could grant includes compensatory damages or an account of profits, as well as an injunction.
If the claim is not settled ‘out of court’ and proceeds to trial, it is unlikely that any trial will take place for at least 12 months.
Watch this space!
‘Jonathan Copping may be contacted by e-mail at ‘JonathanCopping@stoneking.co.uk’