Friday, August 15, 2014
The new issue (volume 6, issue 1) of the Journal of Media Law is out.
Here is the table of contents.
COMMENT AND ANALYSIS
Observations on the House of Lords Select Committee on Communications Report on Plurality
Abstract: This article provides an overview of the chapters in the House of Lords Select Committee on Communications’ report on Media Plurality. It considers the House of Lords’ proposals in light of the existing regulatory/market environment and the proposals of other stakeholders, including the recommendations from Leveson. The conclusion is that the approach put forward in the House of Lords’ report represents a middle ground between different stakeholders; a weaker approach than the proposals in the Leveson report but more radical than those that are expected to be put forward by the current government. The article also assesses the legal feasibility of the proposals in light of existing statutes, EU law and the political chain of delegation as well as what would need to occur for the proposals to come to fruition.
Copyright Reform in Australia: Asking the Right Questions
Isabella Alexander and Michael Fraser
Abstract: In February 2014, the Australian Government released the Report of the Australian Law Reform Commission (ARLC), Copyright and the Digital Economy. In accordance with its Terms of Reference, the ALRC carried out a comprehensive review of the existing exceptions to copyright law, considering whether they were still appropriate in the digital age, and whether new exceptions should be enacted. The Inquiry stimulated strong opinions from members of the wider copyright community, which were expressed both in submissions to the Inquiry and in other fora. As was widely anticipated, the ALRC recommended that the current fair dealing provisions be replaced by a more general and flexible fair use provision. However, it also made a number of other recommendations and comments in respect of related areas such as orphan works and broadcasting.
Protecting Speech in Defamation Law: Beyond Reynolds-Style Defences
Andrew T Kenyon
Abstract: Communication practices have changed dramatically in recent years, allowing wider participation in public debate. This means those who are subject to defamatory speech can more easily consider ‘speaking back’ as their preferred response. It also suggests there could be value in a defamation defence that itself supported a discursive response to defamatory publication. In the context of England and Wales, the defence in s 4 of the Defamation Act 2013 is an attempt to develop a stronger defence for public interest speech, but one that does not take a response-based form. It is an example of developments in a wide range of common law jurisdictions, broadly parallel to Reynolds, which recognise the value in public speech. However, the history of both qualified privilege and fair report privilege suggests a slightly different model of defence is worth exploration. Indeed, parliamentary debates preceding the 2013 Act raised the possibility of making the defence in s 4 subject to publication of a form of response. That type of requirement has existed since the nineteenth century in some fair report privileges. It is a longstanding element of defamation law and offers interesting ideas for a discursive defence for contemporary conditions.
Procedural Controls and the Proper Balance between Public and Private Interests in Defamation Claims
Abstract: Claims in defamation involve courts in balancing of a number of interests. The Claimant’s interest in their reputation must be balanced with the Defendant’s interest in free expression. The Court’s interest in fair, efficient and proportionate adjudication must be balanced against the Claimant’s interest in vindicating their reputation. Much of the literature examining this balance has focused on the substantive law. This article seeks to consider how these interests have been balanced through procedural control mechanisms, such as summary judgment and strike out. In particular, the development of the court’s ability to strike out a claim as an abuse of process is been considered. It is argued that the ability to strike out in such cases performs an important role, but should not be used to prevent reputational vindication where this is worthwhile. Further, it is argued that whilst substantive and procedural changes may reduce the need for strike out, the courts should not remove this important tool from their toolbox.
Exemplary Damages for Invasions of Privacy?
Abstract:As part of the government response to the Leveson Report, the Crime and Courts Act 2013 (UK) introduces new provisions on the availability of exemplary damages for media torts. This Act creates a statutory bar to the awarding of exemplary damages against a publisher who has become a member of an approved regulator but otherwise makes them available in narrowly defined circumstances. The article explores the extent to which the changes are likely to affect media publishers and, as part of this analysis, compares the new provisions with current English law as well as the relevant law in Australia, New Zealand and Canada. It also examines whether the new statutory regime is compatible with the UK's obligations under the European Convention on Human Rights. The article concludes that the statutory measures are to be welcomed because exemplary damages have an important but limited role in deterring particularly egregious media misconduct and the provisions provide more certainty to media publishers as to when they can be ordered. The article also argues that the new provisions on exemplary damages are compatible with the UK's obligations under the Convention.
Who Needs the Sub Judice Rule? Israel as a Test Case in the Relationship between Law and Media
Abstract:Recent coverage of criminal trials of senior government officials in Israel have served to underline the fact that the Israeli media has effectively rendered the statutory sub judice rule, prohibiting coverage of criminal trials, obsolete. The decline in the influence traditionally held by the Israeli political institutions in general and Israel's legislative body, the Knesset, and the Israeli Government in particular, has led to an upsurge in media confidence in covering and commenting on affairs normally monopolized by the courts. The position of the enforcement and prosecutorial bodies in Israel in allowing blatant media coverage of current and upcoming criminal trials, despite concerns about maintaining the integrity of judicial proceedings and the prejudicial influence that individual reports may have on such proceedings, demonstrates their inherent belief that such concerns are not enough to justify the greater disproportionate harm to the right of the public to freedom of information. Shown through the prism of actual trials of well known political figures in Israel, this article explores media influence on the trials themselves, at the same time that courts scramble to understand and deal with this new type of media intrusion.
Regulatory Gaming, Myopia and Ineptitude? Ofcom’s Intervention in the UK Pay–TV Market
Abstract:This article concerns the regulation of the UK pay-TV market, and the key lessons to be learnt from the media regulator's attempt to prise open access to premium content. The case represents a useful study on regulation more generally, and the need for regulators to exercise caution before intervening in markets, especially ones which are fast-moving in technological terms. It is also a lesson that regulators need to be wary of rivals who may engage in regulatory gaming. In such a situation the presence of the regulator may prevent the incumbent and rivals from reaching commercial deals, the latter preferring instead the prospect of imposed regulatory terms.
Petros Iosifidis, Global Media and Communication Policy: An International Perspective
A review by Peggy Valcke and Jeroen Verschakelen
Lee A Bygrave, Data Privacy Law: An International Perspective
A review by Daithí Mac Síthigh
Kari Karppinen, Rethinking Media Pluralism
A review by Rachael Craufurd Smith