Washington University in Saint Louis - School of Law
University of Cambridge
Andrew T Kenyon (ed), Comparative Defamation and Privacy Law (Cambridge Press 2015).
Our purpose in this paper is to make some sense of this divergence. How could two similar legal systems apply rules sharing a common origin and reach such different results? Our methodology is explanatory and comparative. We conclude that the divergence is a function of at least two factors. First, the cultural power of the First Amendment in the United States as it has emerged from defamation law has meant that American judges have been particularly reluctant to trust themselves in ruling in ways which might infringe on freedom of speech. This reluctance is especially pronounced when the press is before the court as a defendant. By contrast, English judges actively engage in balancing the two rights under the Human Rights Act 1998 and the European Convention on Human Rights. Ironically enough, the English approach is much truer to the method Warren and Brandeis suggested 125 years ago as the best way to manage this tension.
We develop our argument in three parts. First, we show how the American position is a function of political commitments made initially in the context of defamation cases involving issues of racial equality in the 1960s. Second, we show how the position in English law is a product of UK involvement with European Human Rights Law. Third, we examine these differences through a series of case studies mapping out how each jurisdiction deals with the publication of stories involving (i) government officials; (ii) celebrities; (iii) private individuals; and (iv) video footage and photographs. We conclude by offering some options by which we could transcend the divide, and we argue that bridging the divide is essential as international conversations about privacy in a wide variety of contexts take on an increasing critical political and economic importance.