Pub Date : 2021-07-03DOI: 10.1080/17577632.2021.2016211
R. Craig, G. Phillipson
ABSTRACT This article seeks to defend the emergent consensus that suspects should be entitled to anonymity until charge and that the tort of misuse of private information (‘MPI') is the appropriate action to protect this right. It systematically addresses Nicole Moreham’s argument, in this journal, that breach of confidence, rather than MPI, should ground such claims, and that the case law to date risks awarding damages for harm to an undeserved reputation. The authors argue that multiple sources of law and theoretical accounts of privacy confirm this information is properly treated as private. In contrast, breach of confidence would provide an inadequate remedy. In response to the concerns on reputational harm, it argues that, in practical terms, the tort of defamation need not be undermined, as claimed. It further contends that the presumption of innocence can act as a guiding light in resolving the problems raised at the level of principle.
{"title":"Privacy, reputation and anonymity until charge: ZXC goes to the Supreme Court","authors":"R. Craig, G. Phillipson","doi":"10.1080/17577632.2021.2016211","DOIUrl":"https://doi.org/10.1080/17577632.2021.2016211","url":null,"abstract":"ABSTRACT This article seeks to defend the emergent consensus that suspects should be entitled to anonymity until charge and that the tort of misuse of private information (‘MPI') is the appropriate action to protect this right. It systematically addresses Nicole Moreham’s argument, in this journal, that breach of confidence, rather than MPI, should ground such claims, and that the case law to date risks awarding damages for harm to an undeserved reputation. The authors argue that multiple sources of law and theoretical accounts of privacy confirm this information is properly treated as private. In contrast, breach of confidence would provide an inadequate remedy. In response to the concerns on reputational harm, it argues that, in practical terms, the tort of defamation need not be undermined, as claimed. It further contends that the presumption of innocence can act as a guiding light in resolving the problems raised at the level of principle.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45882163","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 : 2021-07-03DOI: 10.1080/17577632.2021.2012393
J. Hariharan
ABSTRACT In four recent cases, the High Court of England and Wales has had to consider whether damages for reputational harm can be recovered in a claim for misuse of private information (‘MOPI’). This is an important issue which sharpens focus on the precise boundaries between privacy and defamation law. And yet it is a question on which the court is currently divided, with different judges coming to different conclusions on whether, and on what basis, reputational harm damages can be awarded in a privacy claim. This article argues that the key to resolving this issue is to better understand: (1) the precise interests protected by defamation and MOPI; and (2) how the interests protected by each tort are tied to the available heads of damage. Unpacking these points in turn, the article explains why damages for reputational harm should be restricted to defamation and be unavailable in a MOPI claim.
{"title":"Damages for reputational harm: can privacy actions tread on defamation’s turf?","authors":"J. Hariharan","doi":"10.1080/17577632.2021.2012393","DOIUrl":"https://doi.org/10.1080/17577632.2021.2012393","url":null,"abstract":"ABSTRACT In four recent cases, the High Court of England and Wales has had to consider whether damages for reputational harm can be recovered in a claim for misuse of private information (‘MOPI’). This is an important issue which sharpens focus on the precise boundaries between privacy and defamation law. And yet it is a question on which the court is currently divided, with different judges coming to different conclusions on whether, and on what basis, reputational harm damages can be awarded in a privacy claim. This article argues that the key to resolving this issue is to better understand: (1) the precise interests protected by defamation and MOPI; and (2) how the interests protected by each tort are tied to the available heads of damage. Unpacking these points in turn, the article explains why damages for reputational harm should be restricted to defamation and be unavailable in a MOPI claim.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45074662","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 : 2021-07-03DOI: 10.1080/17577632.2021.2020413
John T. Hartshorne
ABSTRACT This article attempts to identify a standard of liability for use in claims for misuse of private information (MPI). It highlights current uncertainty over this issue following the decision of the Supreme Court in Lloyd v Google LLC. It considers whether the comments of Lord Leggatt in Lloyd are compatible with those made in earlier MPI decisions and argues that the standard applicable remains an open question. In formulating a proposed standard, the article considers issues arising under the Human Rights Act 1998 and is informed by the recommendations of the Australian Law Reform Commission in its review of Australian privacy law. It is suggested that the appropriate standard for the MPI tort ought to be one of ‘quasi-strict’ liability, meaning that liability could, in certain cases, be strict. Whether a defendant would be found to be strictly liable should be determined through the reasonable expectation of privacy test.
{"title":"The standard of liability in claims for misuse of private information","authors":"John T. Hartshorne","doi":"10.1080/17577632.2021.2020413","DOIUrl":"https://doi.org/10.1080/17577632.2021.2020413","url":null,"abstract":"ABSTRACT\u0000 This article attempts to identify a standard of liability for use in claims for misuse of private information (MPI). It highlights current uncertainty over this issue following the decision of the Supreme Court in Lloyd v Google LLC. It considers whether the comments of Lord Leggatt in Lloyd are compatible with those made in earlier MPI decisions and argues that the standard applicable remains an open question. In formulating a proposed standard, the article considers issues arising under the Human Rights Act 1998 and is informed by the recommendations of the Australian Law Reform Commission in its review of Australian privacy law. It is suggested that the appropriate standard for the MPI tort ought to be one of ‘quasi-strict’ liability, meaning that liability could, in certain cases, be strict. Whether a defendant would be found to be strictly liable should be determined through the reasonable expectation of privacy test.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48747278","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 : 2021-07-03DOI: 10.1080/17577632.2021.2020046
Jan Oster
{"title":"Media Freedom","authors":"Jan Oster","doi":"10.1080/17577632.2021.2020046","DOIUrl":"https://doi.org/10.1080/17577632.2021.2020046","url":null,"abstract":"","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48048181","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 : 2021-07-03DOI: 10.1080/17577632.2021.2006962
Ewa Milczarek
ABSTRACT Social networking sites are currently an important element of community, economic and political life. This means that a legal framework that would guarantee freedom of expression on the one hand and protection against defamation on the other must be created. The 2019 CJEU judgement in the Glawischnig-Piesczek (C-18/18) case provides another tool to control the content uploaded to social networking sites by allowing states to require the removal of information that is equivalent to the content previously declared unlawful. The aim of this paper is to analyse preventive content blocking in terms of its relation with freedom of expression. The paper ultimately intends to determine whether this tool stays in conflict with this freedom thus violating its essence or whether it rather stays in a symbiosis with it, allowing the functioning of a public debate free from distorting phenomena of hate speech and hate comment.
{"title":"Preventive content blocking and freedom of expression in the European law – conflict or symbiosis?","authors":"Ewa Milczarek","doi":"10.1080/17577632.2021.2006962","DOIUrl":"https://doi.org/10.1080/17577632.2021.2006962","url":null,"abstract":"ABSTRACT Social networking sites are currently an important element of community, economic and political life. This means that a legal framework that would guarantee freedom of expression on the one hand and protection against defamation on the other must be created. The 2019 CJEU judgement in the Glawischnig-Piesczek (C-18/18) case provides another tool to control the content uploaded to social networking sites by allowing states to require the removal of information that is equivalent to the content previously declared unlawful. The aim of this paper is to analyse preventive content blocking in terms of its relation with freedom of expression. The paper ultimately intends to determine whether this tool stays in conflict with this freedom thus violating its essence or whether it rather stays in a symbiosis with it, allowing the functioning of a public debate free from distorting phenomena of hate speech and hate comment.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45193598","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 : 2021-07-03DOI: 10.1080/17577632.2021.1979844
Judith Townend, Paul Magrath
ABSTRACT Restrictions imposed during the COVID-19 pandemic in England and Wales accelerated the use of digital technology for remote hearings. Inevitably, a period of trial and error followed, with a hybrid and emergency set of rules for media and public access to hearings. This short article outlines some of the main changes to the conduct of court hearings in 2020–21, and the impact on open justice. We contend that this tumultuous period has highlighted the potential for improved accountability of the justice process, but also unresolved issues around the practical management of public access to courts.
{"title":"Remote trial and error: how COVID-19 changed public access to court proceedings","authors":"Judith Townend, Paul Magrath","doi":"10.1080/17577632.2021.1979844","DOIUrl":"https://doi.org/10.1080/17577632.2021.1979844","url":null,"abstract":"ABSTRACT Restrictions imposed during the COVID-19 pandemic in England and Wales accelerated the use of digital technology for remote hearings. Inevitably, a period of trial and error followed, with a hybrid and emergency set of rules for media and public access to hearings. This short article outlines some of the main changes to the conduct of court hearings in 2020–21, and the impact on open justice. We contend that this tumultuous period has highlighted the potential for improved accountability of the justice process, but also unresolved issues around the practical management of public access to courts.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"60423412","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 : 2021-07-03DOI: 10.1080/17577632.2021.2022331
Luke Price
ABSTRACT Outpaced by the development of the internet, current regulatory approaches do not protect users from online harms transmitted over online platforms like Facebook, Twitter and Reddit. The Draft Online Safety Bill attempts to improve safety online by developing online analogues for responsibility practices, but is limited by a focus on platforms as service providers hosting content. Online safety requires more than safe services, because platforms are more than content hosts. Platforms, in the social interactions they facilitate, establish online spaces that are governed by platform architecture and algorithms. These spaces present online hazards in the ways they curate content and interactions online, establishing environments that enable online harms. Such consequences are a product of the space that enabled them: of unmanaged online hazards. Incorporating platform responsibility for online spaces and their hazards into the Online Safety Bill’s risk assessment duties enables protection from the full extent of online harms.
{"title":"Platform responsibility for online harms: towards a duty of care for online hazards","authors":"Luke Price","doi":"10.1080/17577632.2021.2022331","DOIUrl":"https://doi.org/10.1080/17577632.2021.2022331","url":null,"abstract":"ABSTRACT Outpaced by the development of the internet, current regulatory approaches do not protect users from online harms transmitted over online platforms like Facebook, Twitter and Reddit. The Draft Online Safety Bill attempts to improve safety online by developing online analogues for responsibility practices, but is limited by a focus on platforms as service providers hosting content. Online safety requires more than safe services, because platforms are more than content hosts. Platforms, in the social interactions they facilitate, establish online spaces that are governed by platform architecture and algorithms. These spaces present online hazards in the ways they curate content and interactions online, establishing environments that enable online harms. Such consequences are a product of the space that enabled them: of unmanaged online hazards. Incorporating platform responsibility for online spaces and their hazards into the Online Safety Bill’s risk assessment duties enables protection from the full extent of online harms.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46569391","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 : 2021-07-03DOI: 10.1080/17577632.2021.1992128
Damian Tambini
ABSTRACT This article examines the notion of media freedom and the development of two cultures of media freedom. The negative rights approach which is more prevalent in US law is increasingly separated from the more positive rights approach of international human rights and the ECHR. The article outlines the elements of a conditional, institutional approach to media freedom that combines both positive and negative approaches. The article examines the implications of this theory for some contemporary policy questions about regulation of internet intermediaries in Europe.
{"title":"A theory of media freedom","authors":"Damian Tambini","doi":"10.1080/17577632.2021.1992128","DOIUrl":"https://doi.org/10.1080/17577632.2021.1992128","url":null,"abstract":"ABSTRACT This article examines the notion of media freedom and the development of two cultures of media freedom. The negative rights approach which is more prevalent in US law is increasingly separated from the more positive rights approach of international human rights and the ECHR. The article outlines the elements of a conditional, institutional approach to media freedom that combines both positive and negative approaches. The article examines the implications of this theory for some contemporary policy questions about regulation of internet intermediaries in Europe.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48584961","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 : 2021-07-03DOI: 10.1080/17577632.2022.2026551
D. Rolph
ABSTRACT Public Facebook pages are an important way in which traditional media outlets engage their readers and commercialise that engagement. In Fairfax Media Publications Pty Ltd v Voller (2021) 392 ALR 540; [2021] HCA 27, the High Court of Australia has recently held that media outlets are liable as publishers for defamatory third party comments posted on media outlets’ public Facebook pages even if the media outlets are not aware of the presence of those comments. The decision has significant implications not only for media outlets but for any individual or entity in Australia who host or administer a social media page. This article analyses the High Court’s decision and considers its impact.
摘要公共Facebook页面是传统媒体吸引读者并将其商业化的重要方式。在Fairfax Media Publications Pty Ltd v Voller（2021）392 ALR 540一案中；[2021]HCA 27，澳大利亚高等法院最近裁定，即使媒体不知道存在诽谤性第三方评论，媒体也应作为出版商对发布在媒体公共Facebook页面上的诽谤性第二方评论承担责任。这一决定不仅对媒体，而且对澳大利亚任何主持或管理社交媒体页面的个人或实体都有重大影响。本文分析了高等法院的裁决，并考虑了其影响。
{"title":"Liability for third party comments on social media pages","authors":"D. Rolph","doi":"10.1080/17577632.2022.2026551","DOIUrl":"https://doi.org/10.1080/17577632.2022.2026551","url":null,"abstract":"ABSTRACT Public Facebook pages are an important way in which traditional media outlets engage their readers and commercialise that engagement. In Fairfax Media Publications Pty Ltd v Voller (2021) 392 ALR 540; [2021] HCA 27, the High Court of Australia has recently held that media outlets are liable as publishers for defamatory third party comments posted on media outlets’ public Facebook pages even if the media outlets are not aware of the presence of those comments. The decision has significant implications not only for media outlets but for any individual or entity in Australia who host or administer a social media page. This article analyses the High Court’s decision and considers its impact.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-07-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44630073","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 : 2021-01-02DOI: 10.1080/17577632.2021.1889866
G. Horton
ABSTRACT Injunctions are a contentious issue between the judiciary and the press. What the press wishes to publish has sometimes been restricted by the judiciary through the issuing of injunctions. Nonetheless, there have been instances in which injunctions have not been respected. First, members of the House of Commons and the House of Lords have used parliamentary privilege to name individuals. The development of technology also means that information travels quicker and without the hindrance of borders. As a consequence, the second way in which injunctions can be undermined is by information being published in other jurisdictions. Thirdly, identities can be revealed on social media. This article states that, despite these instances undermining injunctions, they are still valuable. This is due to their changing nature from protecting secrets to protecting individuals from intrusion and therefore there is still value in injunctions remaining in place to protect public figures from media frenzies.
{"title":"Injunctions and public figures: the changing value in injunctions for privacy protection","authors":"G. Horton","doi":"10.1080/17577632.2021.1889866","DOIUrl":"https://doi.org/10.1080/17577632.2021.1889866","url":null,"abstract":"ABSTRACT Injunctions are a contentious issue between the judiciary and the press. What the press wishes to publish has sometimes been restricted by the judiciary through the issuing of injunctions. Nonetheless, there have been instances in which injunctions have not been respected. First, members of the House of Commons and the House of Lords have used parliamentary privilege to name individuals. The development of technology also means that information travels quicker and without the hindrance of borders. As a consequence, the second way in which injunctions can be undermined is by information being published in other jurisdictions. Thirdly, identities can be revealed on social media. This article states that, despite these instances undermining injunctions, they are still valuable. This is due to their changing nature from protecting secrets to protecting individuals from intrusion and therefore there is still value in injunctions remaining in place to protect public figures from media frenzies.","PeriodicalId":37779,"journal":{"name":"Journal of Media Law","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2021-01-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1080/17577632.2021.1889866","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44180085","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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