Article 8 & Article 10 of the Human Rights Act 1998

Angus Young reviews the two-stage Campbell test in Misuse of Private Information claims.

Ben Stokes, England’s World Cup winner, made the news last week for reasons other than his considerable cricketing prowess. Mr Stokes took issue with the Sun newspaper publishing an article about his family history and his tweeted response revealed him to be understandably angry and disgusted in equal measure.

The Sun’s response to Mr Stokes is equally revealing inasmuch as it prefaced the likely defence that the Sun’s parent company, News Group Newspapers, might run should Mr Stokes or his family decide to sue for misuse of their private information.

The Sun observed that “it is only right to point out the story was told with the co-operation of a family member who supplied details […]”. They went on to say that the story “is […] a matter of public record and was the subject of extensive front page publicity in New Zealand at the time”.

The Human Rights Act 1998 enshrined the Articles of the European Convention on Human Rights in UK law. The Article 8 right provides that “everyone has the right to respect for his private and family life”.

When considering whether a publisher has misused private information the court will follow the two-stage test established by the House of Lords in 2004 when it came to adjudicate in Campbell v. MGN Limited [2004] UKHL 22. At the first stage the Court will consider whether a claimant has a “reasonable expectation” of privacy in relation to the published information. In pointing to the historic publicity in New Zealand the Sun are suggesting that, since the matters reported were in the public domain Mr Stokes and his family could have no “reasonable expectation” that the information published is private in character.

At the second stage, assuming the claimant’s expectation is reasonable, the Court will attempt to balance the competing rights to establish which is stronger and should take precedence in the instant case.

Lord Steyn outlined the propositions underpinning this “ultimate balancing test” in Re S [2004] UKHL 47:

First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each.

In raising the “co-operation” of a family member the Sun are raising the competing Article 10 rights, of both the family member and the newspaper, to freedom of expression.

Whether Mr Stokes, or his family would succeed in any claim then would seem to depend on the Court’s assessment of whether a story published 30 years ago on the other side of the world could be described as ‘in the public domain’ and, if not, whether the Sun can demonstrate sufficient justification for interference with the Stokes family’s privacy rights. As far as this goes it is hard to argue with Mr Stokes’ characteristically pugnacious assessment that: “This is the lowest form of journalism, focussed only on chasing sales with absolutely no regard for the devastation caused to lives as a consequence. It is totally out of order.”

If you need advice in respect of your private information and the changing law, the Media, Libel & Privacy team at Grant Saw Solicitors are more than happy to assist. Please do not hesitate to contact us further for more information.


This is not legal advice; it is intended to provide information of general interest about current legal issues.