Andrew T. Kenyon

THE FUTURE OF “RESPONSIBLE JOURNALISM”: Defamation law, public debate and news production

If the future of newspapers includes online and transnational platforms, the influence of defamation law on journalism deserves close investigation. A key concern for international publishers remains being sued in defamation in the United Kingdom or in other countries following its legal tradition. However, UK law has developed in recent years so that it now protects “responsible journalism” and many other commonwealth countries have seen similar developments. These changes offer real potential to support wider public debate, but they also contain challenges for law to understand and evaluate journalistic practices. This paper draws on a three-year study of news production and defamation law in the United States, United Kingdom and Australia. It explains the difficult position facing journalism under traditional defamation law, outlines the key legal developments that change that law, and considers how journalists and other media staff perceive defamation law within their everyday practice.

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.

1. ALTER EGOS: THE MISE-EN-SCÈNE

The contours of the question of transmission or jurisdiction receive a particularly sharp delineation in a recent judgment from the annals of contempt of court. How can the solicitor scandalise the court, without destroying the law? Consider Anissa v Parsons. It involves the doctrine of contempt by scandalising – the most feudal of the three legally recognised types of contempt used to keep “the streams of justice clear and pure.”5 And the question that the judgment confronts is the technical and representational ordering of law, and specifically the articulation and disarticulation of two orders – that of the court and that of law.

Building and Sustaining Freedom of Expression

Abstract Although countries protect and promote freedom of expression in different ways, free speech can be understood to have two basic aspects in democratic constitutional systems: non-censorship and diversity of voices. This article examines how the approach to free speech in Sweden contains both these aspects. Selected comparisons with the US First Amendment, and German broadcasting law, indicate the value in the Swedish approach but also reveal challenges that it faces if free speech’s dual aspects are not clearly recognised – a danger that some contemporary statements suggests is real. Articulating free speech in terms of both non-censorship and diversity may aid Swedish parliamentary processes to uphold important structural aspects of the freedom, but it would also bring into focus larger questions about the limits of parliamentary processes alone in building a viable system of freedom of expression for the future.

Assuming Free Speech

Free speech is commonly seen in negative terms as a limitation on government action that restricts speech. Although there have long been arguments that government also has an obligation to act in support of free speech – in part because common free speech rationales appear to involve more than a negative right – much free speech law adopts a negative understanding. This article examines assumptions within negative approaches to free speech and finds little reason to support the idea that free speech exists primarily when the state is not directly limiting speech. On this analysis, arguments about free speech should be reframed. New questions would emerge about what legal limitations and obligations should be applied in the name of free speech and through what methods. The limited recognition given to positive free speech by, for example, the European Court of Human Rights would warrant further development. Free speech would have important positive and negative aspects.

The Law of Reputation and Brands in the Asia Pacific

Efforts to expand the scope of legal protection given to reputation and brands in the Asia Pacific region have led to considerable controversy. Written by a variety of experts, the chapters in this book consider the developing law of reputation and brands in a fraught area.

New Dimensions in Privacy: Communications Technologies, Media Practices and Law

This broad-ranging examination of privacy law considers the challenges faced by the law in changing technological, commercial and social environments. The book encompasses three overlapping areas of analysis: privacy protection under the general law; legislative measures for data protection in digital communications networks; and the influence of transnational agreements and other pressures toward harmonised privacy standards. Leading, internationally recognised authors discuss developments across these three areas in the United Kingdom, Europe, the United States, APEC (the forum for Asia-Pacific Economic Cooperation), Australia and New Zealand. Chapters draw on doctrinal and historical analysis of case law, theoretical approaches to both freedom of speech and privacy, and the interaction of law and communications technologies, in order to examine present and future challenges to laws engagement with privacy. The table of contents and first chapter are available here.

A Positive Freedom of Public Speech? Australian Media Law Reform and Freedom of Political Communication

Proposals to reform Australian media law arise frequently; recent examples have included a merger of public broadcasting organisations and changing legislative ownership limits for commercial media. What might such proposals have to do with the idea of free speech, in particular as it relates to public discourse? Here I explore an approach to free speech recognising positive or structural aspects of the freedom as well as negative or liberty aspects. In short, free speech entails both diversity of voices and absence of censorship, not merely the latter. The outline presented here suggests changes to Australian constitutional interpretation could be warranted, or at least their exploration deserves attention, even if such changes appear unlikely soon.

Defamation and privacy in an era of ‘more speech’

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. The detailed consideration of both defamation and privacy by the Australian Law Reform Commission in its 1979 report Unfair Publication: Defamation and Privacy stands as an exception more than a rule in Commonwealth jurisdictions. In Australia, privacy had long received some protection under defamation law through the requirement in five states and territories to prove the ‘public benefit’ or ‘public interest’ in publishing thematter in question, as well as its truth to establish the justification defence.Merely proving truth was not enough in Queensland, New South Wales, Tasmania and the Australian Capital Territory until the commencement of substantially uniform defamation laws across Australia in 2006. Before then, true private facts that were also defamatory might receive protection where law recognised no public interest or public benefit in publication. In practice, the extra requirement was examined rarely in litigation, although some observers suggested it changed particular media decisions about what to publish. In any event, that particular legal position makes the detailed consideration of both defamation and privacy in 1970s Australia law reform less remarkable. The Australian Law Reform Commission aside, however, there was generally tangential engagement

PROTECTING INFERENCES OF FACT IN DEFAMATION LAW: FAIR COMMENT AND HONEST OPINION

Distinguishing “comment” from allegations of “fact” within the defamation defence of fair comment has long been notoriously difficult. While the defence has recently been replaced by a statutory “honest opinion” defence, the distinction remains highly relevant. There is a real need for judicial determination of the treatment of factual inferences within the defence. In recent years, some judgments have equated “comment” with unverifiable opinions, which would exclude verifiable factual inferences from the defence. This is inconsistent with the defences aims to protect public reasoning and contrary to its history. We explain how a better approach is possible for English courts.