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City Research Online City Research Online City, University of London Institutional Repository Citation: O'Callaghan, O. (2017). Privacy and a free press: locating the public interest. (Unpublished Doctoral thesis, City, University of London) This is the accepted version of the paper. This version of the publication may differ from the final published version. Permanent repository link: https://openaccess.city.ac.uk/id/eprint/17858/ Link to published version: Copyright: City Research Online aims to make research outputs of City, University of London available to a wider audience. Copyright and Moral Rights remain with the author(s) and/or copyright holders. URLs from City Research Online may be freely distributed and linked to. Reuse: Copies of full items can be used for personal research or study, educational, or not-for-profit purposes without prior permission or charge. Provided that the authors, title and full bibliographic details are credited, a hyperlink and/or URL is given for the original metadata page and the content is not changed in any way. City Research Online: http://openaccess.city.ac.uk/ [email protected] PRIVACY AND A FREE PRESS: LOCATING THE PUBLIC INTEREST Exploring the balance between Article 8 and Article 10 rights in a modern media context Oliver O’Callaghan PhD Candidate CITY UNIVERSITY, LONDON LAW SCHOOL JUNE 2017 i TABLE OF CONTENTS Table of Cases (UK) vi Table of Cases (ECHR) viii Table of Cases (USA) ix Table of Cases (Other) x Table of Legislation xi Acknowledgement xii Abstract xiii Part One: Introduction 1 Chapter 1. Introduction & Methodology 1 1.1 Introduction 1 1.2 Methodology 3 Part Two: Privacy and Article 8 5 Chapter 2. What is Defamation for? 7 2.1 Introduction 7 2.2 History of Defamation 9 2.3 Theory of Defamation 16 2.3.1 Reputation as Property 16 2.3.2 Reputation as Honour 18 2.3.3 Reputation as Dignity 20 2.3.4 Other Conceptions 21 2.3.5 Moral Taxonomy 26 2.4 Critiques of the Law 28 2.4.1 The Three Tests 31 2.4.2 The Right Thinking Person 39 2.5 Conclusion 45 ii Chapter 3. The Purpose of Privacy 46 3.1 Introduction 46 3.2 Privacy Case Law 49 3.2.1 Definitional Difficulties 49 3.2.2 ECHR 52 3.2.3 England & Wales 58 3.2.4 USA 65 3.3 A Conception of Privacy 70 3.3.1 Conceptions of Privacy 72 3.3.2 A Formulation of Privacy 84 3.3.3 Why Protect Privacy? 87 3.4 Legal Application 90 3.5 Conclusion 95 Chapter 4. Technology, Society and the Evolving Sphere of 97 Privacy 4.1 Introduction 97 4.2 Social and Technological Evolution 98 4.3 Impacts and Responses 105 4.4 Conclusion 110 Part Three: Speech, the Press and Article 10 112 Chapter 5. Political Theory and Freedom of Speech 113 5.1 Introduction 113 5.2 Context 114 5.3 Political Theory 116 5.3.1 Liberalism 118 5.3.2 Communitarianism 122 5.3.3 Positive and Negative Rights 124 5.4 Theories of Speech 126 5.4.1 Autonomy Based Theories 130 5.4.2 Democratic Deliberation 135 5.4.3 Speech and Harm 142 5.5 Conclusion 146 iii Chapter 6. Press exceptionalism 149 6.1 Introduction 149 6.2 Definitions of the Press 153 6.2.1 History of the Press 153 6.2.2 Theories of Press Rights 157 6.3 Impacts of Press Rights 171 6.3.1 USA 171 6.3.2 ECHR 174 6.3.3 England & Wales 178 6.4 Conclusion 182 Part Four: Balancing Rights 185 Chapter 7. Balancing Rights: Values, Interests and 186 Commensurability 7.1 Introduction 186 7.2 Balancing Constitutional Systems 186 7.2.1 What is Balancing? 188 7.2.2 Proportionality 192 7.3 Critiques of Balancing 197 7.3.1 Critiques from Rights 198 7.3.2 Normative Critiques 200 7.3.3 Critiques from Democracy 203 7.4 Incommensurability and Incomparability 206 7.5 The Correct Role of Balancing 213 7.6 Conclusion: A Theory of Balancing 217 Part Five: Applications and Conclusions 223 Chapter 8. Applying the Balance 224 8.1 Introduction 224 8.2 Balancing Reputation and Speech 224 8.2.1 A Public Interest Defence 226 8.2.2 Speech Before Reputation? 232 8.3 Balancing Privacy and Speech 238 8.3.1 Privacy in the Legal Contexts 238 8.3.2 Publicity and the Public Interest 243 iv 8.4 Conclusion 249 Chapter 9 Conclusion: Locating the Public Interest Between 250 Privacy and Freedom of the Press 9.1 Introduction 250 9.2 Common Themes 254 9.3 Balancing Values 261 9.4 Defining Findings 265 9.5 The Public Interest 271 9.6 Final Conclusion 280 Bibliography I Books I Journals IV Newspaper/Online XVIII Reports XIX Other Online XIX v Table of Cases UK Cases A v B plc [2002] EWCA Civ 337 Ash v McKennitt [2006] EWCA Civ 1714 Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 Attorney-General v Guardian Newspapers Ltd [1987] 1 WLR 1248; [1987] 3 All ER 316 Attorney General v Observer Ltd [1990] 1 AC 109 Attorney-General v Mulholland and Foster [1963] 2 QB 477 Baldwin v Rusbridger [2001] EMLR 1062 Barrymore v News Group Newspapers Ltd [1997] FSR 600 Berezovsky v Michaels [2000] 1 WLR 1004 Berkoff v Burchill & Another [1996] 4 All ER 1008 (CA) Blackshaw v. Lord [1984] Q.B. 1 Bloodworth v Gray (1844) 7 Man & G 334 Bognor Regis Urban District Council v Campion [1972] 2 QB 169 Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 Brad Pitt and Angelina Jolie v News Group Newspapers, 22 July 2010 Byrne v Deane [1937] 1 KB 818 Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22 Cassidy v Daily Mirror [1929] 2 KB 331 Coco v A.N.Clark (Engineers) Ltd [1969] R.P.C. 41 Cooke v MGN Ltd [2014] EWHC 2831 (QB) Cream Holdings Ltd v Banerjee [2004] UKHL 44 de Freitas v Permanent Secretary, Ministry of Agriculture, Fisheries Land and Housing [1999] 1 AC 69 Derbyshire County Council v. Times Newspapers Ltd. [1993] A.C. 534 Douglas v Hello! Ltd [2005] EWCA Civ 595 Flood v Times Newspapers Ltd [2010] EWCA Civ 804 CA (Civ Div) Grobbelaar v. News Group Newspapers Ltd [2002] 1 WLR 3024 GKR Karate v Yorkshire Post (No 1) [2000] EMLR 396 Gulati v MGN Ltd [2015] EWCA Civ 1291 Hall v. Brooklands Auto-Racing Club (1933) 1 KB 205. vi In the matter of an application by D/Inspector Justyn Galloway, PSNI. [2009] NICty 8 Jameel and others v Wall Street Journal Europe [2006] UKHL 147 Jones v Jones [1916] 2 AC 481 Kerr v. Kennedy [1942] 1 K.B. 409 Lake v. King (1668) 1 Wms. Saund. 131b Lewis v. Daily Telegraph Ltd. [1964] A.C. 234 Loutchansky v Times Newspapers (No.6) [2002] E.M.L.R. 44 Malone v. Commissioner for the Metropolitan Police (no.2) [1979] Ch. 344, 357. Maxine Carr v News Group Newspapers Ltd & Others [2005] EWHC 971 (QBD) Mosley v News Group Newspapers [2008] EWHC 1777 (QB) Murray v Express Newspapers Plc [2008] EWCA Civ 446 Norman v Future Publishing [1998] EWCA Civ 161; [1999] EMLR 325 O'Shea v MGN & Another (2001) EMLR 943. 04 May 2001. High Court (QBD) Parmiter v. Coupland (1840) 6 M.&W. 105 Prince Albert v Strange (1848) 1 Mac. & G. 25 Reynolds v Times Newspaper Limited [2001] 2 AC 127 Rocknroll v News Group Newspapers Ltd [2013] EWHC 24 (Ch) RJW v Guardian News and Media Limited [2009] EWHC 2540 (QB) Scott v Sampson (1882) 8 QBD 491 Slim v. Daily Telegraph Ltd. [1968] 2 Q.B. 157, [1968] 1 All E.R. 497 Sim v. Stretch [1936] 2 All E.R. 1237 Terry (previously 'LNS') v Persons Unknown [2010] EWHC 119 Theakston v MGN Ltd [2002] All ER (D) 182 (Feb) Thorley v Kerry (1812) 4 Taunt 355 Tolley v JS Fry & Sons Ltd [1931] AC 333 Venables and Thompson v. News Group Newspapers [2001] 1 All ER 908 Vidal-Hall v Google Inc. [2014] EWHC 13 (QB) Webb v. Times Publishing Co. Ltd. [1960] 2 Q.B. 535 Weller & Ors v Associated Newspapers Ltd [2015] EWCA Civ 1176 Wilkinson v Downton [1897] EWHC 1 (QB), [1897] 2 QB 57 Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 T.L.R. 581 vii Yeo v Times Newspapers Ltd [2014] EWHC 2853 (QB) X (formerly known as Mary Bell) & Y v News Group Newspapers Ltd & Ors. [2003] EWHC 1101 (QB) ECHR /ECJ Cases Abdulaziz et al v UK (1985) 7 EHRR 471 Axel Springer v Germany, App No 39954/08 Belpietro v. Italy - 43612/10 Bergens Tidende and others v Norway (2001) 31 EHRR 16 Biriuk v. Lithuania, Application No. 23373/03, Judgment of 25 November 2008 Bladet Tromso and Stensas v. Norway (2000) 29 EHRR 125 Brind v United Kingdom (1994) 18 EHRR 76 (CD) Castells v. Spain 14 E.H.R.R. 445 Chauvy & Ors v France (2005) 41 EHRR 29 De Haes and Gijsels v Belgium (1998) 25 EHRR 1 97/7 Editions Plon v France (2004) ECHR 200 Financial Times Ltd & Others v United Kingdom (Application No. 821/03 Judgment of 15 December 2009). Fressoz and Roire v. France ([GC], no. 29183/95, § 54, ECHR 1999-I), Gillan and Quinton v. United Kingdom - 4158/05 [2010] ECHR 28 (12 January 2010) Goodwin v United Kingdom (1996) 22 EHRR 123 Handyside v. the United Kingdom (5493/72) [1976] ECHR 5 Incal v Turkey, ECtHR Case No 41/1997/825/1031 Jersild v Denmark (1994) 19 EHRR 1 Lillo-Stenberg v Norway [2014] ECHR 59 Lingens v Austria (1986) 8 EHRR 407 Oberschlick v.
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