On 30 August 2021 it was announced that the privacy claim brought by Ben and Deborah Stokes against the Sun had been settled, with the newspaper agreeing to apologise and pay substantial damages. This was a complete victory for the claimants nearly two years after an intrusive and deeply upsetting front page article about the claimants.
It might be suggested that the purpose of the settlement was to spare Ben and Deborah Stokes the pain and anguish of a trial. In fact, the only pain and anguish spared by the pre-trial settlement in Stokes v The Sun is to the defendants themselves – spared, that is, from their woeful defence being dissected in open court. Thin, nonsensical, and desperate, it makes the defence in The Duchess of Sussex v Associated Newspapers Ltd seem meritorious by comparison, which, as readers of this blog will know, it was anything but.
The Stokes family themselves have been spared nothing. The only gratuitous act was the decision to publish, for the damage it caused them was striking, lasting, and utterly uncalled for. Let us be clear then that the unexpected humanity of a reportedly substantial settlement is not some gesture of generosity or compassion. The claim had a very strong prospect of success, despite the popular surmise, voiced recently by Jim Waterson in The Guardian, that it has surprising privacy implications because the article ‘was based on archive news reports’. On the contrary, the case raises no novel points of principle, for the simple but obvious reason that privacy is not confidentiality. Indeed, the unsustainability of The Sun’s position will become apparent to anyone who reads the defence. For those who cannot bear to do so, this post provides a summary of its major (though not its only) defects.
On 25 August 2019, as wickets fell around him, Ben Stokes produced a stunning, unrivalled display at the Headingley crease to earn England an unexpected (and, certainly, undeserved) victory in the third test of the Ashes series. It was a performance of such magnitude that the story was carried on the front page, not just the back, of the dailies. He had become an icon. Then, on 17 September 2019, and for no other reason than to capitalise on his sudden popularity, The Sun published news of an unknown, historic family tragedy with headline ‘Exclusive: Tragedy That Haunts Stokes’ Family: Hero Ben’s brother and sister were shot dead,’ screaming from its front page. It revealed, in detail, the devastating, horrific crime that befell Stokes’ mother, Deborah, the second claimant in these proceedings, for no other reason, it seems, than to profit from Stokes’ national fame.
The story began: ‘England cricket hero Ben Stokes has been living with a secret family tragedy…’ (emphasis added). It continued by revealing the suffering that the Stokes’ family has endured privately ever since. – ‘Deb was enduring every parents’ worst possible nightmare’ and ‘Deb was “destroyed by grief”’ are some of the quotes extracted from a ‘family source’, one Jacqui Dunn, unrelated to the family, as it happens.
It is only now, several years later, and after proceedings for misuse of private information and breach of the GDPR and Data Protection Act 1998 had begun, that The Sun admits it should ‘not have published’ the story and has settled for a substantial sum. Deborah, speaking after this news became public, said:
“The decision to publish this article was a decision to expose, and to profit from exposing, intensely private and painful matters within our family. The suffering caused to our family by the publication of this article is something we cannot forgive.
Ben and I can take no pleasure in concluding this settlement with the Sun. We can only hope that our actions in holding the paper to account will leave a lasting mark, and one that will contribute to prevent other families from having to suffer the same pain as was inflicted on our family by this article”.
As this statement reveals, the needless pain and suffering caused to the Stokes family is as palpable as it was predictable. As the particulars of claim make clear: ‘the claimants were deeply shocked and extremely distressed at the public revelation of these tragic and highly sensitive family matters which have been kept private (or ‘secret’ as the Defendant itself states in the article) for over 30 years.’
The defence, it must be said, is incredible. The following extract captures the nature, the tone, the audacity of the defendant’s position:
… ‘The First Claimant [Ben Stokes] is a public figure… There is a strong public interest in reporting on all aspects of his career and his achievements, and he has given countless interviews to the media and co-operated with such reporting.’
 (iv) ‘The majority of the information contained in the Article related to events in the Second Claimant [Deborah Stokes]’s life which occurred before the First Claimant was born, which information [sic] does not belong to the First Claimant or concern or relate to his private or family life.’
(v) ‘Insofar as the Article referred to the impact or effect on the First Claimant of information about events in the Second Claimant’s life which occurred before the First Claimant was born, it is denied that such impact or effect means that the information concerns or relates to his private or family life.’
(vi) ‘Insofar as the Article referred to the First Claimant as a “cricket hero” and to his “achievement” as a cricketer notwithstanding the events in the Second Claimant’s life which occurred before the First Claimant was born, this concerned his public role as a professional sportsman and did not concern or relate to his private or family life.’
(i) ‘It is denied that the Article contained information that was private… [since] information about the double murder and suicide emerged in open court in… inquest proceedings… [and] as [that] was open to the public, what took place in those proceedings was thereby necessarily and legitimately made public, and, being once made legitimately public, may be republished.’
(iii) ‘…It is admitted that the Article made the connection between the First Claimant and the double murder and suicide, which events occurred before the First Claimant was born. It is denied that these were private matters as alleged or at all…
(iii)(b) ‘It is denied that the information contained in the Article was not a matter of legitimate public interest, or that it was unrelated to the First Claimant’s professional career as a sportsman. It was information which was capable of making a contribution to a debate of general interest in society about the First Claimant’s achievements in becoming a cricket “hero”, “ace” and “star” notwithstanding these events – the double murder and suicide which occurred before he was born – and overcoming the effects of a tragedy in relation to the Second Claimant’s life which occurred before he was born to become one of England’s most successful sportsmen. The public has a legitimate interest in knowing how the background of a public figure has, or (as in this case) has not, affected their achievements in their role in public life.’
(iii)(c) ‘Although the Second Claimant is not herself a public figure she is, as the First Claimant’s mother, closely associated with a public figure and her right to privacy is accordingly diminished. Further, in order for the Defendant to publish the Article about the First Claimant overcoming the impact on him and his family of a tragic criminal event which occurred before he was born and becoming a national sporting hero it was necessary for the Defendant to publish information about events in the Second Claimant’s life’ (emphasis added).
To summarise, then, the defendant’s position is this: the Claimants cannot establish a reasonable expectation of privacy (“REOP”) in the information contained in the article because: a) the information is not about Ben Stokes (so he can have no REOP in it) and b) it is information taken from the public domain. Thus, on this account, neither Claimant would be able to demonstrate a tort had been committed by publication. Even if they could, says The Sun, the interference with private life was justified because the public has a right to know any and all events that shape the lives of (so-called) public figures (read: public property) – including, incredibly, traumatic events that happened to people close to them. On this hypothesis, any sort of tragedy visited upon mothers, fathers, wives, husbands, daughters, sons, cousins, colleagues, neighbours, friends, and associates that has, in any way, had some bearing on a person’s character is fair game.
Yet, the position is plainly nonsensical – ludicrously so. Read the extracts again. This is what they say: Ben Stokes cannot have a REOP concerning traumatic events occurring in his mother’s life because that information has nothing to do with Ben Stokes. There is a pressing social need for the newspaper to disclose that information because it has everything to do with Ben Stokes since these are events he has had to overcome. Or not overcome. This “secret tragedy” (The Sun’s words) was hardly secret because it concerns public domain information which The Sun was delighted to publish “Exclusive”(ly) (The Sun’s word).
In short: this public/private information exclusively/non-exclusively published to a world that didn’t know/already knew was necessary to show how events that had nothing/everything to do with Ben Stokes did/did not determine his life because this trauma ‘has, or (as in this case) has not, affected [his] achievements’ (The Sun’s words, (iii)(b)).
Still think The Sun had a good case?
Take each part separately. There was no REOP in the information because it had nothing to with Ben Stokes. I cannot believe this needs pointing out, but, for the slow-witted, if you are writing about someone else’s life – about events you say affected them – then you are writing about information which ‘concerns’ or ‘relates’ to them. That is what those words mean. I can only imagine, being unduly generous, that The Sun thought it could plead O v Rhodes here – a case in which a man wrote about traumatic events from his youth, which prompted his estranged wife, on behalf of their son (a minor), to object. That couldn’t possibly generate actionable privacy interests because the story was wholly autobiographical. This, however, is not that case for painfully obvious reasons.
What about the public domain point? This is not as strong a point as fellow journalists seem to think. The story was not about legal proceedings – it was not about keeping a check on judicial decision-making. Neither was it information that was easily accessible, not least because Deborah Stokes’ involvement was under a different name. In any event, regardless of accessibility, the fact of something being known or knowable does not render it automatically and irretrievably un-private for the simple reason that privacy is not confidentiality by another name. This legal point is now well-established, especially after the Supreme Court decision in PJS v News Group Newspapers Ltd. Privacy is about autonomy and dignity. It is about protecting (or else compensating) the disclosure of information that a ‘person of ordinary sensibilities’ recognises would cause pain and anguish to those involved. By its own admission, journalists at The Sun knew that this was a matter that the Claimants did not discuss publicly. They knew it was something that people had either forgotten about (it happened over 30 years ago) or never knew in the first place (it was an ‘Exclusive’ after all). They knew that those events had had a profound effect upon Deborah Stokes. They knew the Claimants did not wish the information to be published precisely because of that effect. They also know, because the regulatory code of conduct they are meant to adhere to tells them so, that matters involving grief and shock require special considerations. Consequently, precedent is firmly on the Claimants’ side here, to which a decision such as McKennitt v Ash, where the Court of Appeal gave particular weight to the information guarded ‘with the iron safeguard of a chastity belt’, would have been of obvious assistance in complaining about the intrusive nature of the information disclosed and its impact on their dignity and autonomy.
The Sun’s claim that it was necessary to destroy the grace and tranquillity that Deborah Stokes, especially, had been able to rediscover for no other reason than to profit opportunistically from her son’s meteoric rise to sporting fame is as insulting as it is pathetic. There is no precedent that The Sun could have relied upon to support this position and no principled reason why a court should empower them to do so. Neither the well-known nor those who pique the curiosity of journalists are public property to be reduced to sub-human status. Ben Stokes, himself, was the country’s best cricketer prior to this publication. He has since taken an indefinite leave of absence from the game to prioritise his mental health. No amount of damages can ever compensate the Stokes family for what The Sun did.
Paul Wragg is Professor of Media Law, at University of Leeds and co-host of the @medialawpodcast.
*This article was originally posted on Inforrm’s Blog and is republished with permission and thanks.