Pub Date : 2023-01-02DOI: 10.1080/17577632.2023.2213914
H. Fenwick
ABSTRACT This article explores the right-wing tendency to parade the creation of greater protection for free speech as a key basis for revision or repeal of the Human Rights Act. To illustrate that point it takes as a case study the potential change to the balance to be struck between Articles 10 and 8 under the proposed Bill of Rights in the context of the tort of misuse of private information. Given the apparently flagship nature of the provisions aimed at such a re-balancing, and the support it enjoys in particular newspapers, it appears probable that they will re-emerge in some form. The notion that judges have disregarded media freedom and usurped the function of Parliament in creating a European-style privacy law appears to be embedded in right-wing thinking and is therefore unlikely to be discarded. It is a trend that will probably continue, whatever the fate of this particular instrument.
{"title":"Raab’s bill of rights and the challenges inherent in attempting a statutory re-balancing of articles 8 and 10 ECHR","authors":"H. Fenwick","doi":"10.1080/17577632.2023.2213914","DOIUrl":"https://doi.org/10.1080/17577632.2023.2213914","url":null,"abstract":"ABSTRACT This article explores the right-wing tendency to parade the creation of greater protection for free speech as a key basis for revision or repeal of the Human Rights Act. To illustrate that point it takes as a case study the potential change to the balance to be struck between Articles 10 and 8 under the proposed Bill of Rights in the context of the tort of misuse of private information. Given the apparently flagship nature of the provisions aimed at such a re-balancing, and the support it enjoys in particular newspapers, it appears probable that they will re-emerge in some form. The notion that judges have disregarded media freedom and usurped the function of Parliament in creating a European-style privacy law appears to be embedded in right-wing thinking and is therefore unlikely to be discarded. It is a trend that will probably continue, whatever the fate of this particular instrument.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48785573","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-02DOI: 10.1080/17577632.2023.2215412
Laroussi Chemlali, Leila Benseddik
ABSTRACT On 8 December 2022, the Court of Justice of the European Union (CJEU) issued a judgment in case TU, RE v Google (C-460/20) as a step forward in shaping the right to de-referencing. After an overview of the previous CJEU’s case-law on the right to de-referencing, the present note gives insights into the findings of the CJEU regarding both the de-referencing of allegedly inaccurate content by the search engine operators, and the de-referencing of photographs displayed in the form of thumbnails. Regarding the dereferencing of online content, the CJEU held that such dereferencing must be granted when the data subject proves a manifest inaccuracy without the need for a judicial decision. As for the dereferencing of thumbnails, their informative value should be taken into account regardless of the original context of their publication.
{"title":"The right to de-referencing ‘manifestly inaccurate’ information: TU, RE v Google","authors":"Laroussi Chemlali, Leila Benseddik","doi":"10.1080/17577632.2023.2215412","DOIUrl":"https://doi.org/10.1080/17577632.2023.2215412","url":null,"abstract":"ABSTRACT On 8 December 2022, the Court of Justice of the European Union (CJEU) issued a judgment in case TU, RE v Google (C-460/20) as a step forward in shaping the right to de-referencing. After an overview of the previous CJEU’s case-law on the right to de-referencing, the present note gives insights into the findings of the CJEU regarding both the de-referencing of allegedly inaccurate content by the search engine operators, and the de-referencing of photographs displayed in the form of thumbnails. Regarding the dereferencing of online content, the CJEU held that such dereferencing must be granted when the data subject proves a manifest inaccuracy without the need for a judicial decision. As for the dereferencing of thumbnails, their informative value should be taken into account regardless of the original context of their publication.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45384823","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-02DOI: 10.1080/17577632.2023.2230005
M. Hanna
ABSTRACT In Banks, the Court of Appeal agreed with the trial judge that serious harm needs to be reassessed once the public interest defence falls away but disagreed about the assessment of serious harm arising from online publications in that phase. The ‘natural inference’ based on the extent of publication and gravity of the allegation was that there had been serious harm to the claimant’s reputation. However, the Court did not pursue a contextual analysis and left open certain questions about the role of inference in the assessment of serious harm in such cases. This article argues that the Court of Appeal’s judgment in Banks should not be interpreted as implying that serious harm can be inferred from the gravity of imputation and extent of publication alone, and raises a question about the relevance to the assessment of serious harm of factors which cause the public interest defence to fail.
{"title":"Inference of serious harm in the context of online publications past their peak and after the public interest defence falls away: Banks v Cadwalladr","authors":"M. Hanna","doi":"10.1080/17577632.2023.2230005","DOIUrl":"https://doi.org/10.1080/17577632.2023.2230005","url":null,"abstract":"ABSTRACT In Banks, the Court of Appeal agreed with the trial judge that serious harm needs to be reassessed once the public interest defence falls away but disagreed about the assessment of serious harm arising from online publications in that phase. The ‘natural inference’ based on the extent of publication and gravity of the allegation was that there had been serious harm to the claimant’s reputation. However, the Court did not pursue a contextual analysis and left open certain questions about the role of inference in the assessment of serious harm in such cases. This article argues that the Court of Appeal’s judgment in Banks should not be interpreted as implying that serious harm can be inferred from the gravity of imputation and extent of publication alone, and raises a question about the relevance to the assessment of serious harm of factors which cause the public interest defence to fail.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48555028","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-02DOI: 10.1080/17577632.2023.2218064
H. Fenwick
{"title":"Liberal democracy, law and the citizen speaker: regulating online speech","authors":"H. Fenwick","doi":"10.1080/17577632.2023.2218064","DOIUrl":"https://doi.org/10.1080/17577632.2023.2218064","url":null,"abstract":"","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43192481","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2023-01-02DOI: 10.1080/17577632.2023.2216523
Thomas DC Bennett
ABSTRACT Statements that interpret the words of others are – by their nature – interpretative. Their meaning is contingent and (inter)subjective; it is something that those who encounter those words or actions construct. As such, it makes little sense for the law to treat interpretative statements as purporting to set out provable facts. Yet English defamation law does precisely this. As a result, publicly criticising ambiguous words or actions that are put into the public domain by one person can cost a commentator dearly. This essay critiques the peculiarities of English defamation doctrine that have created this situation, arguing that all published statements that interpret or purport to interpret one or more earlier statements, whether expressly or impliedly, ought to be treated as statements of opinion. By adopting this approach, English defamation law can address an issue that has the potential to cause significant chilling effects on public discourse – particularly on social media.
{"title":"Interpretation is opinion: realigning the fact/opinion distinction in English defamation law","authors":"Thomas DC Bennett","doi":"10.1080/17577632.2023.2216523","DOIUrl":"https://doi.org/10.1080/17577632.2023.2216523","url":null,"abstract":"ABSTRACT Statements that interpret the words of others are – by their nature – interpretative. Their meaning is contingent and (inter)subjective; it is something that those who encounter those words or actions construct. As such, it makes little sense for the law to treat interpretative statements as purporting to set out provable facts. Yet English defamation law does precisely this. As a result, publicly criticising ambiguous words or actions that are put into the public domain by one person can cost a commentator dearly. This essay critiques the peculiarities of English defamation doctrine that have created this situation, arguing that all published statements that interpret or purport to interpret one or more earlier statements, whether expressly or impliedly, ought to be treated as statements of opinion. By adopting this approach, English defamation law can address an issue that has the potential to cause significant chilling effects on public discourse – particularly on social media.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2023-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41844436","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/17577632.2022.2139567
J. Rowbottom
In Bloomberg v ZXC, the Supreme Court decided that ‘a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.’ The decision adds the highest court’s authority to a conclusion that the lower courts had reached in a series of decisions. While Richard and Sicri are the most notable decisions that directly addressed the point, the foundations for the conclusion can be found in earlier cases such as Hannon. Those decisions prompted considerable academic discussion in the Journal of Media Law and elsewhere. Given the importance of ZXC in developing the scope of privacy law, the Journal is hosting a collection of comments and reflections on the Supreme Court’s decision from several scholars that have participated in the earlier discussions. As the following pages show, the ruling may have settled the legal position, but there is still much to debate about the merits of this decision and what it means for privacy and defamation. To recap the facts of ZXC, the claimant was the chief executive of a division of a company under investigation for corruption in another country. The fact that the company was under investigation was known and had been reported on since an announcement by the law enforcement body in 2013. In 2016, Bloomberg published an article stating that ZXC had been interviewed as part of the investigation. That article was not the focus of the proceedings. A claim in misuse of private information was brought in relation to a later article, which included information taken from a
在彭博诉ZXC案中，最高法院裁定，“受到刑事调查的人在被指控之前，对与调查有关的信息有合理的隐私预期。”这一决定为下级法院在一系列判决中得出的结论增加了最高法院的权威。虽然Richard和Sicri是直接解决这一问题的最值得注意的决定，但结论的基础可以在汉农案等早期案件中找到。这些决定在《媒体法杂志》(Journal of Media Law)和其他地方引发了相当大的学术讨论。鉴于ZXC在发展隐私法范围方面的重要性，《华尔街日报》正在举办一场关于最高法院裁决的评论和反思的集合，这些评论和反思来自几位参与了早期讨论的学者。如下所示，该裁决可能已经解决了法律立场，但关于这一决定的优点以及它对隐私和诽谤意味着什么，仍有很多争论。回顾一下ZXC的事实，原告是一家在另一个国家因腐败而接受调查的公司的一个部门的首席执行官。该公司正在接受调查的事实是众所周知的，自2013年执法机构宣布以来一直有报道。2016年，彭博社发表了一篇文章，称作为调查的一部分，ZXC接受了采访。那篇文章并不是会议的焦点。关于滥用私人信息的索赔是针对后来的一篇文章提出的，其中包括从一个
{"title":"Introduction","authors":"J. Rowbottom","doi":"10.1080/17577632.2022.2139567","DOIUrl":"https://doi.org/10.1080/17577632.2022.2139567","url":null,"abstract":"In Bloomberg v ZXC, the Supreme Court decided that ‘a person under criminal investigation has, prior to being charged, a reasonable expectation of privacy in respect of information relating to that investigation.’ The decision adds the highest court’s authority to a conclusion that the lower courts had reached in a series of decisions. While Richard and Sicri are the most notable decisions that directly addressed the point, the foundations for the conclusion can be found in earlier cases such as Hannon. Those decisions prompted considerable academic discussion in the Journal of Media Law and elsewhere. Given the importance of ZXC in developing the scope of privacy law, the Journal is hosting a collection of comments and reflections on the Supreme Court’s decision from several scholars that have participated in the earlier discussions. As the following pages show, the ruling may have settled the legal position, but there is still much to debate about the merits of this decision and what it means for privacy and defamation. To recap the facts of ZXC, the claimant was the chief executive of a division of a company under investigation for corruption in another country. The fact that the company was under investigation was known and had been reported on since an announcement by the law enforcement body in 2013. In 2016, Bloomberg published an article stating that ZXC had been interviewed as part of the investigation. That article was not the focus of the proceedings. A claim in misuse of private information was brought in relation to a later article, which included information taken from a","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44021178","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/17577632.2022.2139568
G. Phillipson
ABSTRACT This Note clarifies the core finding of the Supreme Court, explains why it does not pose the threat to press freedom some media commentary has alleged, and addresses two issues arising from the complex relationship between confidentiality and privacy.
{"title":"Supreme Court confirms suspects’ privacy rights: the judgment clarified, two criticisms answered","authors":"G. Phillipson","doi":"10.1080/17577632.2022.2139568","DOIUrl":"https://doi.org/10.1080/17577632.2022.2139568","url":null,"abstract":"ABSTRACT This Note clarifies the core finding of the Supreme Court, explains why it does not pose the threat to press freedom some media commentary has alleged, and addresses two issues arising from the complex relationship between confidentiality and privacy.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42790428","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/17577632.2022.2129614
M. Rucz
ABSTRACT Strategic litigation against public participation is a threat to public interest journalism. Although typically a defamation claim underpins a SLAPP, the GDPR may serve as an alternative basis. This paper explores how public interest journalism is protected, and could be better protected, from abusive GDPR proceedings. The GDPR addresses the tension between data protection and freedom of expression by providing for a journalistic exemption. However, narrow national implementations of this provision leave the GDPR open for abuse. By analysing GDPR proceedings against newspaper Forbes Hungary, the paper illustrates how the GDPR can be instrumentalised as a SLAPP strategy. As European anti-SLAPP initiatives are finetuned, abusive GDPR proceedings need to be recognised as emerging forms of SLAPPs, requiring more attention to inadequate engagement with European freedom of expression standards in national implementations of the GDPR, data protection authorities’ role in facilitating SLAPPs, and the chilling effects of GDPR sanctions.
{"title":"SLAPPed by the GDPR: protecting public interest journalism in the face of GDPR-based strategic litigation against public participation","authors":"M. Rucz","doi":"10.1080/17577632.2022.2129614","DOIUrl":"https://doi.org/10.1080/17577632.2022.2129614","url":null,"abstract":"ABSTRACT Strategic litigation against public participation is a threat to public interest journalism. Although typically a defamation claim underpins a SLAPP, the GDPR may serve as an alternative basis. This paper explores how public interest journalism is protected, and could be better protected, from abusive GDPR proceedings. The GDPR addresses the tension between data protection and freedom of expression by providing for a journalistic exemption. However, narrow national implementations of this provision leave the GDPR open for abuse. By analysing GDPR proceedings against newspaper Forbes Hungary, the paper illustrates how the GDPR can be instrumentalised as a SLAPP strategy. As European anti-SLAPP initiatives are finetuned, abusive GDPR proceedings need to be recognised as emerging forms of SLAPPs, requiring more attention to inadequate engagement with European freedom of expression standards in national implementations of the GDPR, data protection authorities’ role in facilitating SLAPPs, and the chilling effects of GDPR sanctions.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48014375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/17577632.2022.2139570
R. Craig
ABSTRACT This note welcomes the judgment in ZXC and in particular the humane and nuanced recognition of reality. The general public do not draw the technical distinctions that professionals and carefully guided juries do on the presumption of innocence. The extension of anonymity until charge is a welcome outcome. The note also considers the taxonomy of the area, responding to the note by Tom Bennett in this volume. It suggests that the ‘hippogriffian’ aspects of the tort of MPI can be explained and justified with a little work.
{"title":"Defendant anonymity until charge, the presumption of innocence and the taxonomy of misuse of private information","authors":"R. Craig","doi":"10.1080/17577632.2022.2139570","DOIUrl":"https://doi.org/10.1080/17577632.2022.2139570","url":null,"abstract":"ABSTRACT This note welcomes the judgment in ZXC and in particular the humane and nuanced recognition of reality. The general public do not draw the technical distinctions that professionals and carefully guided juries do on the presumption of innocence. The extension of anonymity until charge is a welcome outcome. The note also considers the taxonomy of the area, responding to the note by Tom Bennett in this volume. It suggests that the ‘hippogriffian’ aspects of the tort of MPI can be explained and justified with a little work.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43197531","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-07-03DOI: 10.1080/17577632.2022.2148335
Päivi Korpisaari
ABSTRACT While social media services offer a useful platform for obtaining information as well as presenting and commenting on opinions, people can still be silenced by fear of hate speech and insults on the Internet. As a result, the expanded freedom of expression can also reduce the range of opinions and information. This article identifies and analyses the conditions under which online communication platform administrators can be held liable for user-generated content. The focus is on the criteria laid down by the ECtHR in recent cases. The outcome is that liability is exceptional, arising mainly in cases of inciting hatred and violence. Although the Digital Services Act, with its notice-and-action mechanism, offers a cheaper, faster, and often more effective way of reducing insulting and defamatory speech than court proceedings, the impact of the mechanism on freedom of expression and freedom to conduct business must be considered.
{"title":"From Delfi to Sanchez – when can an online communication platform be responsible for third-party comments? An analysis of the practice of the ECtHR and some reflections on the Digital Services Act","authors":"Päivi Korpisaari","doi":"10.1080/17577632.2022.2148335","DOIUrl":"https://doi.org/10.1080/17577632.2022.2148335","url":null,"abstract":"ABSTRACT\u0000 While social media services offer a useful platform for obtaining information as well as presenting and commenting on opinions, people can still be silenced by fear of hate speech and insults on the Internet. As a result, the expanded freedom of expression can also reduce the range of opinions and information. This article identifies and analyses the conditions under which online communication platform administrators can be held liable for user-generated content. The focus is on the criteria laid down by the ECtHR in recent cases. The outcome is that liability is exceptional, arising mainly in cases of inciting hatred and violence. Although the Digital Services Act, with its notice-and-action mechanism, offers a cheaper, faster, and often more effective way of reducing insulting and defamatory speech than court proceedings, the impact of the mechanism on freedom of expression and freedom to conduct business must be considered.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45594450","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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