Megan Richardson

Libel Tourism or Just Redress? Reconciling the (English) Right to Reputation with the (American) Right to Free Speech in Cross-Border Libel Cases

The application of private international law rules in cross-border libel cases has long been a controversial issue with little international consensus. The matter has flared with particular intensity recently in a number of English decisions involving US defendant publishers. In such cases English courts have applied domestic jurisdictional and choice of law standards without regard to international instruments such as the European Union Regulation on Jurisdiction and Judgments (Brussels I) or The Regulation on the Law Applicable to Non-Contractual Obligations (Rome II). What are these standards? First, in terms of jurisdiction, an English court will allow a claimant to serve a non-EU foreign publisher out of the jurisdiction in respect of publications in England based on the fact that the local publications involve damage suffered arising from a tortious act committed in the forum. The existence of a local tort, when accompanied by a local reputation, means that in practice a defendant will rarely, if ever, be able to have proceedings dismissed on the ground that a foreign court is a more appropriate forum. Secondly, each act of publication creates a separate cause of action. Thirdly, in terms of choice of law, English law is exclusively applied to publications occurring in England. Finally, the English domestic law of libel focuses predominantly on vindicating the claimant’s right to reputation (whether a public or private figure) rather than protecting the defendant’s right to freedom of expression and so is generous to plaintiffs by international and certainly US standards.

Celebrity Privacy and Benefits of Simple History

Is personal revelation the right of the subject alone or can others tell the story even without consent? The question lies at the heart of recent celebrity privacy cases. When Michael Douglas and Catherine Zetajones claimed their wedding party had been intercepted by underground paparazzi with the photographs to be published in Hello!, their complaint was not that they should be let alone completely. Indeed they had contracted with OK! to give the public account of their celebration with carefully vetted authorised pictures. Yet they claimed their privacy was implicated and the equitable action for breach of confidence was the way to protect this; a claim partly and with some reservations accepted by the courts, which refused an interlocutory injunction 1 but subsequently allowed damages for the unauthorised publication (at the time suggesting the injunction should have been awarded).Z When Naomi Campbell found herself the subject of an article in the Mirror revealing details of her treatment for a drug addiction, with covertly taken photographs in support, her essential complaint was that the story had been obtained and published without her knowledge or approval (although conceding that her own previous false accounts meant she was in no position to prevent telling about her addiction). Further, the House of Lords left her the option in finding her confidence breached. 3 In the New Zealand case of Hoskingv. Runting, where a tort of public disclosure of private facts was recognised

Honour in a Time of Twitter

‘What is honour in a time of Twitter?’ It is a question that Falstaff might have asked in autumn 2012 when the McAlpine affair erupted onto the public stage. First, there were the thousands of tweets casually labelling Lord McAlpine a paedophile (falsely as it turned out). Then, the shocked responses when McAlpine emerged from retirement to publicly refute the imputation and threaten legal proceedings in defamation against those involved if apologies and settlements were not forthcoming (a substantial number were, and there was also a successful case in court). McAlpine, a former Conservative Party treasurer and biographer of the Thatcher years, justified his resort not merely to media but also to law as a proportionate response to a serious unfounded accusation that ‘rots your life’. In fact, he showed a certain restraint. Given the personal character of the paedophilia claims, he might have argued that the statements on Twitter were not only defamatory but a breach of his right to private life under the European Convention on

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.

Trade marks, newspapers and reading publics

ABSTRACT How did the nineteenth-century trade marks registration system with its preference for distinctive trade marks accommodate Britain’s newspapers and reading publics, who seemed able to distinguish between newspapers despite their common descriptive names? In this article, it is argued that the situation presents another example of intellectual property law’s ‘negative spaces’, of creativity and innovation thriving in the absence of significant formal protection from intellectual property law. Moreover, it shows, yet again, the place of informal control in what is in other respects a formalised media industry sector. The historical analysis helps to explain the recent decision of an Irish judge that The Times and The Irish Times should continue to ‘co-exist peacefully’ in Ireland, with The Times permitted to launch a digital Times (Irish Edition) over the objection of the similarly named Irish Times, its nineteenth-century counterpart.

Publicity Right, Personality Right, or Just Confusion?

There is little consensus internationally as to whether and how the law should respond when celebrities find themselves subjected to unwanted public discussions of their private lives in the media (increasingly on a global basis online), and when their personal attributes are referenced without their consent in certain kinds of advertising and trade. A number of commentators have characterized such intrusions on a celebrity’s personal dignity or autonomy as simply falling among the minor inconveniences of being a celebrity, insufficient to warrant legal protection given important social values such as freedom of speech and cultural pluralism. The lack of consensus is reflected in the uncertain shifting legal lines drawn around celebrity protection, especially in common law jurisdictions which, unlike many civil law jurisdictions, do not adhere to the idea of a full-scale personality right. In this chapter, we canvass the diverse devices that the common law courts have deployed to deal with the grant of celebrity rights. We note and support the messy multivalence we find recognised in common law approaches given the range of dynamic interests that are at play. Such heterogeneity of values might also be relevant to the curtailment of celebrity rights. Thus, we equally support a flexible approach to the limitations, defences and other points at which discretion may be exercised by judges to find a balance between the interests/rights that may be claimed for celebrities (human and otherwise) in controlling the uses of their personal attributes in advertising and trade, and the countervailing interests/rights that others may seek to maintain including in freedom of speech and cultural pluralism.

Is data protection the new privacy

Article by Megan Richardson, University of Melbourne, Australia giving a comparative overview of developments in data protection law, its application in common law jurisdictions and in EU law. This article was substantially written during a period of research leave at the Institute of Advanced Legal Studies in London between September and December 2012 and aspects were canvassed at a faculty seminar held at the Dickson Poon School of Law in October 2012 and a public seminar at the Institute for Advanced Legal Studies in December 2012, as well as in conversations with particular individuals.

Raymond Wacks, Privacy and Media Freedom

(2013). Raymond Wacks, Privacy and Media Freedom. Journal of Media Law: Vol. 5, No. 2, pp. 345-354.

The Law of Reputation and Brands in the Asia Pacific: New horizons

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.