'Regulation of Privacy and Freedom of the Press from 2004-2017: From Campbell to Fake News '
in L Edwards Law, Policy and the Internet (Hart Publishing: Forthcoming)
Posted: 24 Jan 2016 Last revised: 7 Apr 2017
Date Written: January 23, 2016
In this chapter, we assess developments in the English law of breach of confidence since the seminal Campbell v MGN case in 2004. We document the growth of the action of ‘misuse of private information’ and provide doctrinal analysis of the case law that maps the complex, fragmented range of principles and tests established by the UK courts. These are situated against the backdrop of regulation of the UK print press, reflecting how this system is changing through the Leveson Inquiry, European Court of Human Rights (ECtHR) jurisprudence and the Royal Charter on Self-Regulation of the Press. Regulatory challenges emerging from new technologies used for news collection and distribution are also considered, with specific attention to the role of social media for super-injunctions and fake news, and to use of drones in newsgathering.
The chapter structure is as follows:
• Firstly, we outline what the action of misuse of private information (MOPI) is, noting how it relates to ‘traditional’ notions of breach of confidence.
• Secondly, we analyse the two-stage test from McKennitt v Ash for determining if a MOPI action exists. This requires assessing the existence of a ‘reasonable expectation to privacy’ and how the freedom of the press and the privacy of the individual is balanced. At this point, we also reflect on regulatory challenges of drone use in newsgathering.
• Thirdly, we assess the case law to observe how this test plays out in practice, focusing on approaches for determining the public interest in such stories.
• Fourthly, we look to the regulatory role of the UK Data Protection Act 1998, particularly the exemption for journalistic activity. This also involves considering the provisions on damage and why these have not been used greatly in practice. The new 2016 EU General Data Protection Regulation is mentioned briefly too.
• Fifthly, we consider the importance of injunctions as the only effective remedy in this domain and the practical challenges these bring.
• Sixthly, we reflect on several changes in press regulation namely:
o The interaction of social media and super injunction cases through case law. Findings of the Neuberger Report on super-injunctions and the Joint Committee Report on Privacy and Injunctions.
o Outcomes of the Leveson Report into the Culture, Practices and Ethics of the Press. We examine progress since the Report’s release and on finding a new regulator that meets accreditation requirements of the Royal Charter on Self-Regulation of the Press. We also consider debates about in 2017 about enacting the controversial s40 Crime and Courts Act 2013.
Future challenges for press regulation from fake news.
Keywords: privacy, freedom of the press, drones, superinjunctions, social media, law, misuse of private information, fake news
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