‘Ashes hero’: Ben Stokes. Mike Egerton/PA Wire/PA Images

Ben Stokes v The Sun: gross intrusion or simple reportage? How media privacy law works

When Ben Stokes celebrated his part in the England cricket team’s World Cup triumph, followed by his incredible match-winning innings during the Ashes, dubbed the “greatest ever”, he could not have anticipated that heightened interest in him would lead to the later unwelcome unearthing of an old family secret.

The day after the Ashes series ended, The Sun newspaper ran a story headlined “Stokes’ Secret Tragedy” recounting the 1988 murder of Stokes’ two siblings by his mother’s ex-partner in New Zealand.

In a highly charged response on Twitter, Stokes vehemently criticised The Sun, claiming its story was “immoral and heartless” and “contemptuous to the feelings and circumstances of my family”.

The Sun’s spokesperson has defended the newspaper’s actions, claiming that the murders were widely covered in the New Zealand media and that it had published with the co-operation of another family member, Jacqui Dunn, the killer’s other daughter.

These arguments broadly reflect the privacy versus free expression arguments that have recurred in many legal disputes between high-profile celebrities and the (usually tabloid) media. Such disputes are governed by misuse of private information (MPI) law, an area of law developed by judges following the passage of the Human Rights Act 1998 (HRA), particularly the Article 8 right to respect for private life and the Article 10 right to free expression.

Though Stokes has not indicated any intention to bring a legal claim, wider questions have arisen as to the legality of The Sun’s actions. So, has The Sun breached privacy law?

When deciding whether a misuse of private information has occurred, the court would apply a two-stage test. First, it would consider whether Stokes had a “reasonable expectation” of privacy in relation to the information. If so, the court would then balance Stokes’ privacy right against The Sun’s free expression right and decide which one is stronger and ought to prevail. Both of these stages of the test take close account of the particular facts of the relevant case. In the context of misuse of private information, two issues in the Stokes case are particularly interesting because of their (legal) ambiguity.

Public domain

First is the question of whether this information was, as The Sun claims, already in the public domain? In older confidence actions in the pre-Human Rights Act, pre-digital era, a firm “public domain” exception applied. Once information was “out there”, it was “public” and there was no secret left to protect.

But this position has developed and a strict private/public binary no longer applies. An individual may still have a reasonable expectation of privacy in respect of information that is partly (or even widely) publicised. In Stokes’ case, the extensive publicity given to the murder of his siblings was more than 30 years ago in a country on the other side of the world. So this would not automatically be deemed “public” and The Sun’s reference to the story as “Stokes’ Secret Tragedy” tends to support this.

Whose privacy?

A second interesting issue is: whose privacy is it anyway? Stokes’ Twitter statement claimed: “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.” This hinted perhaps at his acceptance that his sporting role will attract a degree of attention and interest.

Misuse of Public Information (MPI) law does indicate that being a “public figure” or “role model” is a relevant factor in MPI disputes and so-called “Ashes Hero” Stokes would fit the definition. But the law is also clear that public figures still enjoy a right to privacy, as successful litigants such as Naomi Campbell and “PJS” demonstrate. Furthermore, Stokes’ “public figure” status would have only limited bearing on whether The Sun’s story was deemed to be in the public interest.

Naomi Campbell: successful litigant. EPA/ Ian Langsdon

This statement also raises the trickier issue of how to deal with the privacy interests of an interrelated family group. Stokes’ primary concern was for the privacy of his family – and particularly his mother who lives in New Zealand. The privacy rights of family members may be included in claims where there is clear evidence they would be adversely affected by publication of private information.

But would Stokes have a reasonable expectation of privacy in relation to events that happened to other members of his family before his birth, particularly where another extended family member is willing to speak to the media about them? This case raises the problem of who (if anyone) can “own” or control shared family experiences – particularly when family members have different attitudes to the information.

In this sense, the case has broad parallels with the James Rhodes dispute in 2014-15 where the Court of Appeal held that James Rhodes’ autobiography did not misuse private information about his son, because the information was about Rhodes rather than his son.

Ultimately, the Stokes-Sun dispute highlights some interesting grey areas in MPI law and, while a privacy claim would face a number of hurdles, it is also clear that The Sun’s claims about public domain should be treated with caution. Yet, irrespective of the strength of any legal claim, in light of widespread criticism of The Sun and support for Stokes, it seems that the morality of The Sun’s actions is perhaps more clear-cut.