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Media Law and Ethics in the 21St Century

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Media Law and Ethics in the 21St Century Media Law and Ethics in the 21st Century Protecting Free Expression and Curbing Abuses About the International Bar Association The global voice of the legal profession The International Bar Association (IBA), established in 1947, is the world’s leading organisation of international legal practitioners, bar associations and law societies. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world. It has a membership of over 55,000 individual lawyers and 206 bar associ- ations and law societies spanning all continents. It has considerable expert- ise in providing assistance to the global legal community as well as being a source of distinguished legal commentators for international news outlets. Grouped into two divisions – the Legal Practice Division and the Public and Professional Interest Division – the IBA covers all practice areas and profes- sional interests, providing members with access to leading experts and up- to-date information. Through the various committees of the divisions, the IBA enables an inter- change of information and views among its members as to laws, practices and professional responsibilities relating to the practice of business law around the globe. Media Law and Ethics in the 21st Century Protecting Free Expression and Curbing Abuses Edited by James Lewis and Paul Crick Editorial selection and matter © International Bar Association 2014 Chapter 2 © Onora O’Neill Preface and all other chapters © International Bar Association 2014 Softcover reprint of the hardcover 1st edition 2014 978-0-230-30187-0 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. Crown Copyright material is licensed under the Open Government Licence v1.0. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6–10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The authors have asserted their right to be identified as the authors of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2014 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978-1-349-33740-8 ISBN 978-1-137-31264-8 (eBook) DOI 10.105 7/9781137312648 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress. Typeset by Cambrian Typesetters, Camberley Contents Table of Cases vii Table of Legislation xv Editors and Contributors xix Preface by Mark Stephens xxiii Part I The Legal, Ethical and Editorial Landscape 1 Privacy: A Judicial Perspective 3 David Eady 2 The Rights of Journalism and the Needs of Audiences 35 Onora O’Neill 3 Why We Write: Three Magic Words – ‘The Public Interest’ 46 Alan Rusbridger Part II The Practitioner’s View – Protecting Free Expression and Curbing Abuses 4 The Ultimate Balancing Test 63 Pia Sarma 5 Privacy Protection – Luxury Goods or Essential Commodity? 78 Amber Melville-Brown 6 ‘People are so much more interesting than things’: Protecting Free Expression 104 Gavin Millar QC 7 ‘You say tomato …’: A Comparison of English and US Privacy Law Principles 128 Robert Balin and Yuli Takatsuki Part III Confronting Current and Future Challenges 8 Privacy and Free Expression: Competing or Complementary Rights? 151 Michael Harris and Kirsty Hughes 9 The Internet as a Lens: Concepts of Privacy in Online Spaces 167 Jeffrey Hermes Index 193 v This page intentionally left blank Table of Cases United Kingdom A v B plc [2002] EWCA Civ 337, [2003] QB 195, [2002] 3 WLR 542 69, 112, 154 A v B [2005] EWHC 1651 (QB), [2005] EMLR 36, (2005) 28 (8) IPD 28060 82 AAA v Associated Newspapers Ltd [2012] EWHC 2103 (QB), [2013] EMLR 2, [2012] HRLR 31; aff’d [2013] EWCA Civ 554 138 A-G v Guardian Newspapers Ltd (No 2); A-G v Observer Ltd [1990] 1 AC 109, [1988] 3 WLR 776, [1988] 3 All ER 545 25 A-G v Newspaper Publishing plc [1988] Ch 333, [1987] 3 WLR 942, [1987] 3 All ER 276 25 A-G v Times Newspapers Ltd [1974] AC 273, [1973] 3 WLR 298, [1973] 3 All ER 54 31 A-G v Times Newspapers Ltd [1992] 1 AC 191, [1991] 2 WLR 994, [1991] 2 All ER 398 25 AMP v Persons Unknown [2011] EWHC 3454 (TCC), [2011] Info TLR 25, (2012) 156 (2) SJLB 31 28 ASG v GSA [2009] EWCA Civ 1574 30 Bonnard v Perryman [1891] 2 Ch 269, [1891–94] All ER Rep 965 17, 18, 19, 20, 116, 146 Browne v Associated Newspapers Ltd [2007] EWCA Civ 295, [2008] QB 103, [2007] 3 WLR 289 14, 144 CC v AB [2006] EWHC 3083 (QB), [2007] EMLR 11, [2007] 2 FLR 301 93 CTB v News Group Newspapers Ltd (No 3) [2011] EWHC 1326 (QB) 24 CTB v News Group Newspapers Ltd (No 4) [2011] EWHC 1334 (QB) 24, 28 CTB v News Group Newspapers Ltd (No 5) [2011] EWHC 3099 (QB) 24 Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457, [2004] 2 WLR 1232 7, 9, 10, 13, 14, 15, 29, 80, 81, 112, 113, 119, 120, 124, 134, 135, 137, 143, 145 Clarke v Chadburn [1985] 1 WLR 78, [1985] 1 All ER 211, [1984] IRLR 350 26 Comr of Police for the Metropolis v Times Newspapers Ltd [2011] EWHC 2705 (QB), [2014] EMLR 1 105 Contostavlos (Tulisa) v Mendahum (Michael) [2012] EWHC 850 (QB) 96 Coulson v Coulson (1887) 3 TLR 846 18 vii viii Table of Cases Cream Holdings Ltd v Banerjee [2004] UKHL 44, [2005] 1 AC 253, [2004] 3 WLR 918 18, 19 DFT v TFD [2010] EWHC 2335 (QB) 30 Douglas v Hello! Ltd (No 1) [2001] QB 967, [2001] 2 WLR 992, [2002] 1 All ER 289 112, 154 Douglas v Hello! Ltd (No 3) [2003] EWHC 55 (Ch), [2003] 1 All ER 1087 (Note), [2003] EMLR 29 80 Douglas v Hello! Ltd (No 6) [2003] EWHC 786 (Ch), [2003] 3 All ER 996, [2003] EMLR 31 126 Douglas v Hello! Ltd [2005] EWCA Civ 595 96 ETK v News Group Newspapers Ltd [2011] EWCA Civ 439, [2011] 1 WLR 1827, [2011] EMLR 11 54 Ferdinand v MGN Ltd [2011] EWHC 2454 (QB) 14, 93, 118, 125, 134, 139, 145 Flood v Times Newspapers Ltd [2012] UKSC 11, [2012] 2 AC 273, [2012] 2 WLR 760 23 Fraser v Evans [1969] 1 QB 349, [1968] 3 WLR 1172, [1969] 1 All ER 8 18 Giggs v News Group Newspapers Ltd [2012] EWHC 431 (QB), [2013] EMLR 5 24 Goodwin v News Group Newspapers Ltd (No 3) [2011] EWHC 1437 (QB), [2011] EMLR 27, [2011] HRLR 31 28, 69 Gray & Coogan v News Group Newspapers & Mulcaire; Phillips v News Group Newspapers [2012] EWCA Civ 48, [2012] 2 WLR 848, [2012] 2 All ER 74 122 Greene v Associated Newspapers Ltd [2004] EWCA Civ 1462, [2005] QB 972, [2005] 3 WLR 281 17, 19 Guardian News & Media Ltd, Re [2010] UKSC 1, [2010] 2 AC 697, [2010] 2 WLR 325 18, 75 HRH Prince of Wales v Associated Newspapers Ltd [2008] EWCA Civ 1776, [2008] Ch 57, [2007] 3 WLR 222 14 Harakas v Baltic Mercantile & Shipping Exchange Ltd [1982] 1 WLR 958, [1982] 2 All ER 701, (1982) 126 SJ 414 18 Hutcheson v News Group Newspapers Ltd [2011] EWCA Civ 808, [2012] EMLR 2, [2011] UKHRR 1329 118 Hutcheson (formerly WER) v Popdog Ltd (formerly REW) [2011] EWCA Civ 1580, [2012] 1 WLR 782, [2012] 2 All ER 711 25 Imerman v Tchenguiz [2010] EWCA Civ 908, [2011] Fam 116, [2011] 2WLR 592 120, 122 JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645, [2011] 2 All ER 324 29 Jagger v Darling [2005] EWHC 683 (Ch) 93 Table of Cases ix Jameel v Wall Street Journal Europe Sprl (No 3) [2006] UKHL 44, [2007] 1 AC 359, [2006] 3 WLR 642 69, 145 John v Associated Newspapers [2006] EWHC 1611 (QB), [2006] EMLR 27 97 Kaye v Robertson [1991] FSR 62 133, 153, 154 McClaren v News Group Newspapers Ltd [2012] EWHC 2466 (QB), [2012] EMLR 33, (2012) 109 (35) LSG 20 55, 83, 118, 145 McKennitt v Ash [2006] EWCA Civ 1714, [2008] QB 73, [2007] 3 WLR 194 13, 16, 66, 97, 114, 139 Maxwell v Pressdram [1987] 1 WLR 298, [1987] 1 All ER 656, (1987) 84 LSG 1148 6, 18 Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB) 27, 91 Mosley v News Group Newspapers Ltd [2008] EWHC 1777 (QB), [2008] EMLR 20, (2008) 158 NLJ 1112 141, 146 Murray v Big Pictures (UK) Ltd; Murray v Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch 481, [2008] 3 WLR 1360 23, 98, 115, 120, 137, 138 Ntuli v Donald [2010] EWCA Civ 1276, [2011] 1 WLR 294, [2011] CP Rep 13 30, 115, 144 OPQ v BJM [2011] EWHC 1059 (QB), [2011] EMLR 23 53 Polanski v Condé Nast Publications Ltd [2010] UKHL 10, [2005] 1 WLR 637, [2005] 1 All ER 945 93 R v Central Independent Television plc [1994] Fam 192, [1994] 3 WLR 20, [1994] 3 All ER 641 153 R v Broadcasting Standards Commission, ex p BBC [2001] QB 885, [2000] 3 WLR 1327, [2000] 3 All ER 989 7 R (on the application of Purdy) v DPP [2009] UKHL 45, [2010] 1 AC 345, [2009] 3 WLR 403 23 R (on the application of Wood) v Comr of Police for
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