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Could The Sun be facing the “mother of all privacy claims”?

On 11 July 2023, on the News Agents podcast, broadcaster Jon Sopel asked whether The Sun could be facing “the mother of all libel claims” for publishing allegations against a then unnamed BBC presenter.  On 13 July 2023, Vicky Flind confirmed that her husband Huw Edwards was the broadcaster in question.  It might be too much to say that his identity was an open secret until this point, but anyone reasonably familiar with social media would have been able to establish that he was likely the presenter in question.  In this article, we explore the question of prospective liability for both libel and the misuse of private information.

The Sun appears to have published allegations that are prima facie defamatory, but there are questions (albeit not necessarily insurmountable) over identification at the point of publication.  The Sun may also seek to argue that the defamatory imputations are substantially true, although such a defence will fail if they are found to have over-egged the pudding.  The original Sun publication stated that the young person at the heart of the story was given "more than £35,000 since they were 17 in return for sordid images”.  This is a clear imputation of criminality: the Sun’s subsequent claim that it never intended to make an allegation of criminality is irrelevant for the purposes of libel law (the question is what the reasonable reader would have understood was being alleged, not what the publisher intended to say).

There is also, in theory, a prospective public interest defence, although there are questions over whether it was reasonable for The Sun to publish the story in the way it did.  Notably, the young person concerned has claimed via solicitors that they were not approached for comment.  They contacted The Sun and said that the allegation was "totally wrong and there was no truth in it".  The Sun chose not to update their story to include this denial.  Moreover, it is not obvious why, if the Sun thought it was justified in running the story, that they chose not to name Edwards at the outset.  If they were unsure about the allegations, then they should not have run the story at all.  There was no police investigation so the situation was not analogous with the case of ZXC v Bloomberg [2022] UKSC 5 (in which it was held that individuals under police investigation will generally have an expectation of privacy in relation to that investigation), nor would they have had concerns over contempt of court (which requires criminal proceedings to be active – typically triggered by an arrest).  A cynical view might be that the Sun wanted to milk the story for all it was worth and keep the nation on tenterhooks, whilst attempting to plunge the BBC into chaos.  It is common knowledge that Rupert Murdoch is not a fan of the organisation.  If this was the thinking, with Edwards now in hospital and the police having confirmed there is no investigation (coupled with the Sun’s own admission they were not suggesting criminality), the strategy may seriously backfire; The Sun’s conduct, as much as the BBC’s, is now subject to intense scrutiny.

Perhaps the more obvious prospective claim is for a breach of privacy.  We are all entitled to private lives under Article 8 of the European Convention on Human Rights (ECHR) which protects your right to respect for your private life, your family life, your home and your correspondence.  Correspondence obviously includes all forms of electronic message.  This right has been incorporated into domestic law in the form of the tort of the misuse of private information.  It is not an unqualified right.  When an individual brings a privacy claim, the court must balance Article 8 rights against Article 10 rights, namely the right to freedom of expression.  In assessing the viability of a hypothetical claim it is necessary to perform a two stage test:-

  1. Does the claimant have a realistic expectation of privacy in the information?
  2. If so, is there an overriding public interest in publishing the information?

Dealing with the first test, private messages sent by dating apps and information relating to clandestine relationships are always likely to be considered private.

The second test is fact-sensitive.  It is trite law that ‘the public interest’ and ‘what the public are interested in’ are different concepts.  A salacious appetite for gossip and title tattle is never sufficient.  The case of PJS v News Group Newspapers Ltd [2016] UKSC 26 effectively confirmed that ‘kiss and tell’ stories are essentially unlawful.

The Independent Press Standards Organisation’s (“IPSO”) Editors’ Code of Practice states, that the public interest includes, but is not confined to:-

  • Detecting or exposing crime, or the threat of crime, or serious impropriety.
  • Protecting public health or safety.
  • Protecting the public from being misled by an action or statement of an individual or organisation.
  • Disclosing a person or organisation’s failure or likely failure to comply with any obligation to which they are subject.
  • Disclosing a miscarriage of justice.
  • Raising or contributing to a matter of public debate, including serious cases of impropriety, unethical conduct or incompetence concerning the public.
  • Disclosing concealment, or likely concealment, of any of the above.”

IPSO is the self-appointed watchdog of various (but not all) newspapers including The Sun.  The Sun may argue that the first and penultimate grounds apply, but these grounds are not binding on a court, which is less likely to be persuaded that there is an overriding public interest in publishing private information that sections of society may consider morally dubious (e.g. extra-marital affairs or relationships where there is a large age gap).  In the Edwards case, the fact he is a high-profile presenter may not be particularly relevant from a legal perspective, despite it being the only reason why the story is being reported at all. While the public interest defence (sometimes known as the ‘iniquity’ defence) is in principle available in misuse of private information claims, the Courts are likely to interpret it narrowly. Indeed, one might wonder how many of the population would be at risk of having their private information exposed if iniquity were to include subscriptions to an OnlyFans page and/or a penchant for pornography.

If Edwards were to bring a claim against the Sun and win, damages would likely be substantial, probably in six figures and eclipsing damages awarded for phone hacking.  The disclosure of the private information may well have ended Edwards’ career and, most alarmingly, he is a man who is known to have suffered from bouts of depression, who has ended up in a psychiatric hospital as a result of the story.

Of course, one should not speculate too much until all the facts are known, but even if Edwards has no desire to litigate, this episode may raise questions about the conduct of the Sun and put pressure on the government or the next government to revisit its decision to shelve part two of the Leveson inquiry into the ethics and conduct of the press.


Legal Disclaimer

Articles are intended as an introduction to the topic and do not constitute legal advice.