Comparative Defamation and Privacy Law

Transcription

1 Comparative Defamation and Privacy Law Defamation and privacy are now two central issues in media law. While defamation law has long posed concerns for media publications, the emergence of privacy as a legal challenge has been relatively recent in many common law jurisdictions outside the US. A number of jurisdictions have seen recent defamation and privacy law reforms, which have often drawn on, or reacted against, developments elsewhere. This timely book examines topical issues in defamation and privacy law focussed on media, journalism and contemporary communication. Aimed at a wide legal audience, it brings together leading and emerging analysts of media law to address current and proposed reforms and the impact of changes in communication environments and to re-examine basic principles such as harm and free speech. This book will be of interest to all those working on commonwealth or US law, as well as comparative scholars from wider jurisdictions. andrew t. kenyon is Professor of Law and a Director of the Centre for Media and Communications Law at the University of Melbourne, Australia.

2 Cambridge Intellectual Property and Information Law As its economic potential has rapidly expanded, intellectual property has become a subject of front-rank legal importance. Cambridge Intellectual Property and Information Law is a series of monograph studies of major current issues in intellectual property. Each volume contains a mix of international, European, comparative and national law, making this a highly significant series for practitioners, judges and academic researchers in many countries. Series editors Lionel Bently Herchel Smith Professor of Intellectual Property Law, University of Cambridge, United Kingdom William R. Cornish Emeritus Herchel Smith Professor of Intellectual Property Law, University of Cambridge, United Kingdom Advisory editors François Dessemontet, Professor of Law, University of Lausanne, Switzerland Paul Goldstein, Professor of Law, Stanford University, United States The Rt Hon. Sir Robin Jacob, Hugh Laddie Professor of Intellectual Property, University College London, United Kingdom A list of books in the series can be found at the end of this volume.

3 Comparative Defamation and Privacy Law Edited by Andrew T. Kenyon Centre for Media and Communications Law, Melbourne Law School, University of Melbourne, Australia

4 University Printing House, Cambridge CB2 8BS, United Kingdom Cambridge University Press is part of the University of Cambridge. It furthers the University s mission by disseminating knowledge in the pursuit of education, learning and research at the highest international levels of excellence. Information on this title: / Cambridge University Press 2016 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2016 A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication Data Kenyon, Andrew T., editor. Comparative defamation and privacy law / edited by Andrew T. Kenyon. Cambridge, United Kingdom ; New York : Cambridge University Press, Series: Cambridge intellectual property and information law ; 32 Includes papers presented at a workshop held at the Centre for Media and Communications Law at the University of Melbourne. ECIP preface and acknowledgements. LCCN ISBN (hardback) LCSH: Freedom of expression Congresses. Privacy Congresses. Libel and slander Congresses. LCC K3253. A6 C DDC /4 dc23 LC record available at ISBN Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

5 Contents List of contributors Acknowledgements page vii ix 1 Defamation and privacy in an era of more speech andrew t. kenyon 1 2 Anyone...in any medium? The scope of Canada s responsible communication defence hilary young 17 3 Ceci n est pas une pipe: the autopoietic inanity of the single meaning rule andrew scott 40 4 New York Times v. Sullivan at fifty years: defamation in separate orbits david partlett 58 5 Defamation and democracy russell l. weaver 82 6 A reasonable expectation of privacy : a coherent or redundant concept? eric barendt 96 7 Media intrusion into grief: lessons from the Pike River mining disaster n.a. moreham and yvette tinsley Press freedom, the public interest and privacy gavin phillipson The Atlantic divide on privacy and free speech kirsty hughes and neil m. richards 164 v

6 vi Contents 10 The right to be forgotten by search engines under data privacy law: a legal and policy analysis of the Costeja decision david lindsay Privacy for the weak, transparency for the powerful melissa de zwart The trouble with dignity amy gajda The uncertain landscape of Article 8 of the ECHR: the protection of reputation as a fundamental human right? tanya aplin and jason bosland Vindicating reputation and privacy david rolph Divining the dignity torts: a possible future for defamation and privacy ursula cheer Reverberations of Sullivan? Considering defamation and privacy law reform andrew t. kenyon and megan richardson 331 Bibliography 354 Index 373

7 Contributors tanya aplin, Professor, The Dickson Poon School of Law, King s College London, United Kingdom eric barendt, Emeritus Professor, Faculty of Laws, University College London, United Kingdom jason bosland, Senior Lecturer, Melbourne Law School, University of Melbourne, Australia ursula cheer, Professor of Law, University of Canterbury School of Law, New Zealand amy gajda, Professor of Law, Tulane University Law School, New Orleans, Louisiana, United States kirsty hughes, University Lecturer in Public Law, University of Cambridge, United Kingdom andrew t. kenyon, Professor, Melbourne Law School and Joint- Director, Centre for Media and Communications Law, University of Melbourne, Australia david lindsay, Associate Professor, Faculty of Law, Monash University, Australia n.a. moreham, Reader in Law, Victoria University of Wellington, New Zealand david partlett, Asa Griggs Candler Professor of Law, Emory University School of Law, United States gavin phillipson, Professor of Law, Durham Law School, University of Durham, United Kingdom neil m. richards, Professor of Law, Washington University School of Law, United States vii

8 viii List of contributors megan richardson, Professor, Melbourne Law School and Joint- Director, Centre for Media and Communications Law, University of Melbourne, Australia david rolph, Associate Professor, Faculty of Law, University of Sydney, Australia andrew scott, Associate Professor, Department of Law, London School of Economics and Political Science, United Kingdom yvette tinsley, Reader in Law, Victoria University of Wellington, New Zealand russell l. weaver, Professor of Law and Distinguished University Scholar, University of Louisville Louis D Brandeis School of Law, United States hilary young, Assistant Professor, Faculty of Law, University of New Brunswick, Canada melissa de zwart, Professor, Adelaide Law School, University of Adelaide, Australia

9 Acknowledgements It has been a privilege to work with academic colleagues from five common law countries in developing this collection. Contributions address issues in defamation and privacy law, examining UK, US, Canadian, New Zealand and Australian developments. The project was made possible through support from the Australian Research Council and its Discovery programme (Kenyon DP ). A two-day workshop was held at the Centre for Media and Communications Law at the University of Melbourne, Australia, where almost all contributors participated, along with further colleagues whose valuable contributions greatly helped the final development of the chapters, participated. Many thanks to everyone who took part, as well as to those whose work is seen in the pages that follow; thanks also to Roy Baker, Eric Descheemaeker, Steve Friedland, Lyrissa Lidsky, Barbara McDonald and Andrew Roberts. Wide-ranging debate and discussion at the workshop led to revised chapters and substantially improved the final collection. Thanks to all at Cambridge University Press for their support of the publication; to James Nunez and Hamish Carr, who assisted me with some of the editorial tasks; and to the Melbourne Law School for its continuing support of the Centre for Media and Communications Law. But above all, thanks to the contributors for their thought, care and engagement in addressing a range of evolving and challenging issues in media law. As readers will see, a wide range of views are presented in the chapters that follow, and it should be clear that I could not agree with all of them. Given my interest in diverse public speech, however, it should not be surprising that I think it is valuable for these varied analyses to be presented. I hope readers also find much of value in the work. ix