Pub Date : 2022-07-03DOI: 10.1080/17577632.2022.2139571
Thomas D C Bennett
Bloomberg v ZXC is only the fourth case in the (apparently) tortious action known as ‘misuse of private information’ (MPI) to reach our highest court. And yet, it is entirely arguable that Bloomberg ought not to have been pleaded in MPI in the first place. Prima facie, its facts fall within the wellknown Spycatcher formulation of the equitable action for breach of confidence (BoC). Pleading it in MPI, whilst plausible, gives rise to a wholly unnecessary debate about the relationship between our primary privacy-protecting tort and its reputation-protecting counterpart. Simply pleading the case in BoC would have avoided this. But the case was pleaded in MPI only and dealt with on that basis by the High Court, Court of Appeal and Supreme Court. Clearly, claimant counsel were convinced this was either the only or best way to put the case. This leaves us, however, with more questions than answers. For it further obscures the already murky relationship between MPI and BoC, making it even more difficult than it had already become to determine precisely what the formal lineage of each is. The desirability of formal coherence is often prayed in aid by jurists and legal scholars alike as an important component of the rule of law. It may be that this
{"title":"Confidence, privacy, and incoherence","authors":"Thomas D C Bennett","doi":"10.1080/17577632.2022.2139571","DOIUrl":"https://doi.org/10.1080/17577632.2022.2139571","url":null,"abstract":"Bloomberg v ZXC is only the fourth case in the (apparently) tortious action known as ‘misuse of private information’ (MPI) to reach our highest court. And yet, it is entirely arguable that Bloomberg ought not to have been pleaded in MPI in the first place. Prima facie, its facts fall within the wellknown Spycatcher formulation of the equitable action for breach of confidence (BoC). Pleading it in MPI, whilst plausible, gives rise to a wholly unnecessary debate about the relationship between our primary privacy-protecting tort and its reputation-protecting counterpart. Simply pleading the case in BoC would have avoided this. But the case was pleaded in MPI only and dealt with on that basis by the High Court, Court of Appeal and Supreme Court. Clearly, claimant counsel were convinced this was either the only or best way to put the case. This leaves us, however, with more questions than answers. For it further obscures the already murky relationship between MPI and BoC, making it even more difficult than it had already become to determine precisely what the formal lineage of each is. The desirability of formal coherence is often prayed in aid by jurists and legal scholars alike as an important component of the rule of law. It may be that this","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":"47215378","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: 10.1080/17577632.2022.2109852
Laroussi Chemlali
ABSTRACT On 15 June 2021, the Court of Justice of the European Union (CJEU) ruled in case C-645/19 between Facebook and the Belgian Data Protection Authority. The CJEU offered some clarification on the General Data Protection Regulation’s (GDPR) one-stop-shop mechanism. In particular, the Court addressed the question of whether a national supervisory authority that is not the lead authority can bring legal proceedings before a court in its Member State with respect to the cross-border data processing. In its judgment, the CJEU reaffirmed the allocation of competences between the ‘lead’ and ‘concerned’ supervisory authorities laid down by the GDPR, while emphasising the importance of sincere and effective cooperation between them, in order to ensure consistent and homogeneous implementation of the GDPR.
{"title":"The competence of non-lead supervisory authority under the EU GDPR’S one-stop-shop mechanism: CJEU judgment in Facebook and Others (C-645/19)","authors":"Laroussi Chemlali","doi":"10.1080/17577632.2022.2109852","DOIUrl":"https://doi.org/10.1080/17577632.2022.2109852","url":null,"abstract":"ABSTRACT On 15 June 2021, the Court of Justice of the European Union (CJEU) ruled in case C-645/19 between Facebook and the Belgian Data Protection Authority. The CJEU offered some clarification on the General Data Protection Regulation’s (GDPR) one-stop-shop mechanism. In particular, the Court addressed the question of whether a national supervisory authority that is not the lead authority can bring legal proceedings before a court in its Member State with respect to the cross-border data processing. In its judgment, the CJEU reaffirmed the allocation of competences between the ‘lead’ and ‘concerned’ supervisory authorities laid down by the GDPR, while emphasising the importance of sincere and effective cooperation between them, in order to ensure consistent and homogeneous implementation of the GDPR.","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":"42272371","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: 10.1080/17577632.2022.2139569
J. Hariharan
ABSTRACT This contribution considers the way that defamation law features in the Supreme Court's analysis of the misuse of private information tort in ZXC v Bloomberg LP. The court, it is argued, is markedly reluctant to accept that the operation of the privacy action is impacted by the law of defamation. Exploring the question of damages helps to show that this approach raises concerns about the law's coherence and could lead to significant difficulties in future cases.
{"title":"Privacy and defamation in ZXC: some concerns about coherence","authors":"J. Hariharan","doi":"10.1080/17577632.2022.2139569","DOIUrl":"https://doi.org/10.1080/17577632.2022.2139569","url":null,"abstract":"ABSTRACT This contribution considers the way that defamation law features in the Supreme Court's analysis of the misuse of private information tort in ZXC v Bloomberg LP. The court, it is argued, is markedly reluctant to accept that the operation of the privacy action is impacted by the law of defamation. Exploring the question of damages helps to show that this approach raises concerns about the law's coherence and could lead to significant difficulties in future cases.","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":"47615558","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: 10.1080/17577632.2022.2153306
S. Palin
ABSTRACT This comment looks at the current controversies surrounding the strategic use of libel law to silence and intimidate investigative journalists. Much of the problem flows the cost of litigation in defamation. The comment proposes a model for reform based on the streamlined procedure used in the Intellectual Property Enterprise Court, in which recoverable costs are subject to a cap. The comment argues that such a model for reform is more likely to be effective in addressing the current concerns than the Government's anti-SLAPP proposals.
{"title":"The case for a media and communications public participation court","authors":"S. Palin","doi":"10.1080/17577632.2022.2153306","DOIUrl":"https://doi.org/10.1080/17577632.2022.2153306","url":null,"abstract":"ABSTRACT This comment looks at the current controversies surrounding the strategic use of libel law to silence and intimidate investigative journalists. Much of the problem flows the cost of litigation in defamation. The comment proposes a model for reform based on the streamlined procedure used in the Intellectual Property Enterprise Court, in which recoverable costs are subject to a cap. The comment argues that such a model for reform is more likely to be effective in addressing the current concerns than the Government's anti-SLAPP proposals.","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":"45522438","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: 10.1080/17577632.2022.2141225
S. Barnett, T. Murdoch, Judith Townend
ABSTRACT Under-investment in public service journalism has led to growing interest in the possibility of philanthropic support for the sector. Though long associated with non-profit journalism in North America, there is little tradition of philanthropy in UK journalism. This paper explains how recognition of public interest journalism as charitable can be achieved through more constructive interpretations of the existing law. Despite its initially conservative response, the Charity Commission has recently taken important steps towards recognising defined forms of journalism as charitable under the existing law. This paper reviews the democratic imperatives fulfilled by public interest journalism which justify such developments; and seeks to demonstrate how this framework for defining public interest journalism aligns with the public benefit requirement in charity law, opening up the possibility of new forms of charitably funded ‘public benefit journalism’.
{"title":"Where public interest and public benefit meet: the application of charity law to journalism","authors":"S. Barnett, T. Murdoch, Judith Townend","doi":"10.1080/17577632.2022.2141225","DOIUrl":"https://doi.org/10.1080/17577632.2022.2141225","url":null,"abstract":"ABSTRACT Under-investment in public service journalism has led to growing interest in the possibility of philanthropic support for the sector. Though long associated with non-profit journalism in North America, there is little tradition of philanthropy in UK journalism. This paper explains how recognition of public interest journalism as charitable can be achieved through more constructive interpretations of the existing law. Despite its initially conservative response, the Charity Commission has recently taken important steps towards recognising defined forms of journalism as charitable under the existing law. This paper reviews the democratic imperatives fulfilled by public interest journalism which justify such developments; and seeks to demonstrate how this framework for defining public interest journalism aligns with the public benefit requirement in charity law, opening up the possibility of new forms of charitably funded ‘public benefit journalism’.","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":"43140157","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: 10.1080/17577632.2022.2142733
Vicki C. Jackson
ABSTRACT Knowledge institutions—understood as ongoing entities with a central purpose of creating or disseminating knowledge according to disciplinary standards—are central to the workings of a constitutional democracy. The press is made up of knowledge institutions that should be recognized as such. Moreover, and contrary to the suggestions of some jurists, the press can be reasonably defined, without suspect content discrimination, in light of its special role in seeking and reporting knowledge; different definitions may be appropriate for different purposes, such as limited access to physical press briefings as compared to privileges for confidential sources. Finally, knowledge institutions, including the press, are interdependent on each other, which means that all knowledge institutions have stakes in the well-being of others.
{"title":"Knowledge institutions in constitutional democracy: reflections on ‘the press’","authors":"Vicki C. Jackson","doi":"10.1080/17577632.2022.2142733","DOIUrl":"https://doi.org/10.1080/17577632.2022.2142733","url":null,"abstract":"ABSTRACT\u0000 Knowledge institutions—understood as ongoing entities with a central purpose of creating or disseminating knowledge according to disciplinary standards—are central to the workings of a constitutional democracy. The press is made up of knowledge institutions that should be recognized as such. Moreover, and contrary to the suggestions of some jurists, the press can be reasonably defined, without suspect content discrimination, in light of its special role in seeking and reporting knowledge; different definitions may be appropriate for different purposes, such as limited access to physical press briefings as compared to privileges for confidential sources. Finally, knowledge institutions, including the press, are interdependent on each other, which means that all knowledge institutions have stakes in the well-being of others.","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":"41547002","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: 10.1080/17577632.2022.2121128
R. Arnold
ABSTRACT This article considers case law from the courts of England and Wales on the balance between copyright and freedom of expression and how this has developed over the last 50 years or so. Although there has been no fundamental change in the approach of the English courts to this issue, the enactment of the Human Rights Act 1998 and the jurisprudence of the Court of Justice of the European Union have led to an acceptance that decisions in cases involving conflicts between copyright and freedom of expression need to be grounded in the European human rights framework. Like the CJEU, the English courts have generally preferred to treat human rights considerations as influencing the interpretation and application of the internal mechanisms in copyright law rather than as supplying an external corrective mechanism. In that sense progress has been made towards the constitutionalisation of copyright law.
{"title":"The constitutional turn: balancing copyright and freedom of expression in English law","authors":"R. Arnold","doi":"10.1080/17577632.2022.2121128","DOIUrl":"https://doi.org/10.1080/17577632.2022.2121128","url":null,"abstract":"ABSTRACT This article considers case law from the courts of England and Wales on the balance between copyright and freedom of expression and how this has developed over the last 50 years or so. Although there has been no fundamental change in the approach of the English courts to this issue, the enactment of the Human Rights Act 1998 and the jurisprudence of the Court of Justice of the European Union have led to an acceptance that decisions in cases involving conflicts between copyright and freedom of expression need to be grounded in the European human rights framework. Like the CJEU, the English courts have generally preferred to treat human rights considerations as influencing the interpretation and application of the internal mechanisms in copyright law rather than as supplying an external corrective mechanism. In that sense progress has been made towards the constitutionalisation of copyright law.","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":"49662547","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: 10.1080/17577632.2022.2153216
Dimitris Akrivos
ABSTRACT This article looks at transgender media representations from the aspect of press regulation which is so far under-researched. Placing the analysis within the fragmented post-Leveson UK press landscape, it examines the two UK press watchdogs’ provisions relating to transgender reporting. The study evaluates IPSO’s and IMPRESS’ editorial standards through the lens of queer legal theory, offering a fresh perspective on the key role of these bodies in establishing (trans)gender ‘outsiders’ and ‘insiders’ in the ongoing trans rights debate of which the press forms a key part. It is argued that, although both regulators have taken steps to tackle trans-discriminatory reporting, IMPRESS’ approach seems to strike a more constructive balance between freedom of expression and trans people’s rights than IPSO. The paper concludes by making recommendations for both press regulators to address the complexities of trans issues and tackle the discursive harm of transgender media ‘othering’ more effectively.
{"title":"Transgender reporting in the British press: editorial standards and discursive harms in the post-Leveson era","authors":"Dimitris Akrivos","doi":"10.1080/17577632.2022.2153216","DOIUrl":"https://doi.org/10.1080/17577632.2022.2153216","url":null,"abstract":"ABSTRACT This article looks at transgender media representations from the aspect of press regulation which is so far under-researched. Placing the analysis within the fragmented post-Leveson UK press landscape, it examines the two UK press watchdogs’ provisions relating to transgender reporting. The study evaluates IPSO’s and IMPRESS’ editorial standards through the lens of queer legal theory, offering a fresh perspective on the key role of these bodies in establishing (trans)gender ‘outsiders’ and ‘insiders’ in the ongoing trans rights debate of which the press forms a key part. It is argued that, although both regulators have taken steps to tackle trans-discriminatory reporting, IMPRESS’ approach seems to strike a more constructive balance between freedom of expression and trans people’s rights than IPSO. The paper concludes by making recommendations for both press regulators to address the complexities of trans issues and tackle the discursive harm of transgender media ‘othering’ more effectively.","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":"46113841","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: 10.1080/17577632.2022.2139566
N. Moreham
ABSTRACT The significance of the Supreme Court decision in ZXC v Bloomberg extends well beyond recognition of the ‘starting point’ that, up to the point of charge, a person who is subject to police investigation has a reasonable expectation of privacy in respect of information about it. The Supreme Court's willingness to use the privacy tort to protect a claimant's reputational interests (based largely on European Court of Human Rights jurisprudence) moves the misuse of private information action firmly into defamation’s domain. This article examines the potential ramifications of the change in relationship between the two actions and shows how measures like the new exception for foreseeable loss of reputation (recognised in ZXC itself) can help preserve essential protections for true, but reputationally-damaging, allegations.
{"title":"Privacy, defamation and ZXC v Bloomberg","authors":"N. Moreham","doi":"10.1080/17577632.2022.2139566","DOIUrl":"https://doi.org/10.1080/17577632.2022.2139566","url":null,"abstract":"ABSTRACT The significance of the Supreme Court decision in ZXC v Bloomberg extends well beyond recognition of the ‘starting point’ that, up to the point of charge, a person who is subject to police investigation has a reasonable expectation of privacy in respect of information about it. The Supreme Court's willingness to use the privacy tort to protect a claimant's reputational interests (based largely on European Court of Human Rights jurisprudence) moves the misuse of private information action firmly into defamation’s domain. This article examines the potential ramifications of the change in relationship between the two actions and shows how measures like the new exception for foreseeable loss of reputation (recognised in ZXC itself) can help preserve essential protections for true, but reputationally-damaging, allegations.","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":"45533746","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 : 2022-06-11DOI: 10.1080/17577632.2022.2086167
András Koltay
Published in Journal of Media Law (Vol. 14, No. 1, 2022)
发表于《媒体法》杂志(第14卷第1期，2022年)
{"title":"Media freedom in the age of citizen journalism","authors":"András Koltay","doi":"10.1080/17577632.2022.2086167","DOIUrl":"https://doi.org/10.1080/17577632.2022.2086167","url":null,"abstract":"Published in Journal of Media Law (Vol. 14, No. 1, 2022)","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-06-11","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"138503644","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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