A common argument made to justify First Amendment restrictions on privacy torts and defamation law is that legal liability will chill the media. I am generally sympathetic to these arguments, though only to a point. I think these arguments are often overblown. An interesting point of comparison is the UK, where there is a much weaker protection of free speech and much stronger defamation law. Although the UK has not embraced all of the privacy torts recognized in the United States, it has come close, recognizing a robust tort of breach of confidence. Despite the lack of a First Amendment equivalent, and the stronger legal liability for gossip and libel, the press in the UK seems anything but chilled or cowed. Consider J.K. Rowling’s recent testimony:
Rowling said a “wholly untrue” Daily Express story, which claimed she had based an unpleasant character on her ex-husband, had meant she had to have a “horrible” conversation with their young daughter to explain that it was not the case.
“This episode caused real emotional hurt,” she said, because her daughter had to cope with other children believing that about her father.
Rowling added: “It portrayed me as a vindictive person who would use a book to vilify anyone against whom I had a grudge.”
Rowling also pointed to a story published in the Sunday Mirror, which claimed her husband had given up his job as a doctor “to be at the beck and call of his obscenely rich wife,” she said.
This was “damaging misinformation” about her husband, who is not a celebrity, she said, because it led colleagues to believe he had abandoned his medical career. The paper subsequently apologized.
Defamatory articles spread like fire and are difficult to contain, she told the inquiry, but she had no “magical answer” to the problem of abuses by the press.
Rowling’s testimony, and that of others, reveals a rabid and fervent media in the UK — in spite of the stronger laws. This makes me ponder whether the claim that strong privacy and defamation law will chill the media is false — or at least is overblown as I believe. But another conclusion may be drawn from this — perhaps the law doesn’t do much work at all. It appears that the media’s behavior is not dramatically affected by the law, and thus the law really fails to shape norms or impact behavior. I’m not sure I agree with this claim, but it is one that should be pondered.
The situation calls for further thought. How can it be that the tabloid press is so robust in the UK which appears to have much weaker free speech protections than the US? I only have guesses, not answers, and this question has always struck me as one worth investigating.
Original Posted on Concurring Opinions
* * * *
This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.