Historically public, presently private?

In September 2019, the Sun newspaper published a front-page article about a tragedy which had taken place in New Zealand more than 30 years ago which affected the family of England cricketer, Ben Stokes and his mother, Deborah Stokes. The tragedy had been widely reported in the New Zealand press at the time it occurred.

Legal action

Ben and Deborah Stokes brought legal proceedings against The Sun arguing that the publication of the story amounted to an interference with their privacy rights.

Initially, The Sun disputed the breach of their privacy rights, arguing that the article was based on widely available 1980s archive news reports from New Zealand which were in the public domain and had been publicly available since they were published. The Sun did accept that the reports had not necessarily been "easily accessible" for all of that time.

The Sun has now settled the proceedings. It has paid damages to Ben and Deborah Stokes and issued a public apology for the article, which it has conceded should not have been published.

Implications

While the settlement means that no court will rule on merits of the case brought by Ben and Deborah Stokes, their case does raise interesting issues.

The case along with other recent high-profile examples (such as Duchess of Sussex's successful case against the Mail on Sunday), demonstrates the increasing breadth of application of the law of privacy as a means of restricting media intrusion. In particular, where the subject matter concerned is sensitive and the question of the public interest in publication is disputed.

The case is also an interesting example of an apparent enhanced application of privacy protections where the subject matter reported is historic, even if once public. Such an enhanced application is consistent with the underlying values found in other areas of the law such as data protection. The case brings sharply into focus the existence and extent of any "right to be forgotten", which is of increasing importance in an era where the internet means that historic conduct is recorded and available for others to analyse in the future.

Brodies is well placed to advise both media organisations and private individuals on the law of privacy, as well as reputation management more generally. For more information, please contact Niall McLean, Tony Convery or your usual Brodies contact.