Ben Stokes: Privacy v Freedom of Expression?

Ben Stokes: Privacy v Freedom of Expression?

Stokes described the publishing of the article as “low and despicable behaviour, disguised as journalism” and stated that he and his family have “taken great care to keep private what were deeply personal and traumatic events”. In response, The Sun issued the following statement:

“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.”

But has the thin line between Stokes’ right to privacy and The Sun’s right to freedom of expression been crossed?

The balancing act

Article 8 of the European Convention on Human Rights provides a right to respect for one’s “private and family life, his home and his correspondence.” However, this right is qualified and it can be infringed in certain circumstances if there is a justification in the public interest. Article 10, meanwhile, states that “everyone has the right to freedom of expression.”

In Campbell v MGN [2002] the House of Lords found that there was no need for an initial confidential relationship between the parties for a violation of Article 8 to occur and established a new cause of action known as “misuse of private information”. They identified two elements necessary for determining whether there had been a misuse of private information:

1. Did the applicant have a “reasonable expectation of privacy”?

2. If the answer to the first question is yes, was the publication of the information necessary?

These are not straightforward questions. Case law says that a person has a reasonable expectation of privacy when it comes to “obviously private” information. This expectation also arises if a reasonable person would find the disclosure of that information offensive. However, in Murray v Express Newspapers [2008], the Court of Appeal cited that the publication of seemingly inoffensive photographs of JK Rowling’s 19 month-old son in a public street still infringed his Article 8 rights, namely because his parents had taken great care to keep him out of the public eye and their consent had not been sought.  All the circumstances of the case must be considered.

When it comes to balancing an individual’s right to privacy against freedom of expression, the European Court of Human Rights argued in Von Hannover v Germany (No 1) (2005) that “the decisive factor… should lie in the contribution that the published photos and articles make to a debate of general interest”. Other considerations include how well-known the person concerned is, their prior conduct, the subject matter of the information, the circumstances in which it was obtained and the form in which it was published.

So what does this mean?

Has Stokes’ privacy been unjustifiably infringed? Stokes alleges that this personal story was sensationalised on The Sun’s front page, containing “serious inaccuracies”, and the information was obtained by a reporter going to his parents’ home to question them without prior warning with the sole purpose of “chasing sales.” Stokes emphasises that, despite being a public figure himself, this incident unfairly invaded the private life of his parents. The Sun, however, argues that the story had already been widely publicised, albeit over 30 years ago, suggesting that Stokes, or his parents, could not claim a reasonable expectation of privacy.  Nevertheless, this story once again illustrates the difficult balancing act: on the one hand a newspaper’s right to freedom of expression, and what is deemed to be necessary publication; and on the other, what an individual, and sometimes their family, has to prove in order to maintain their right to privacy.