A just balance or just imbalance? The role of metaphor in misuse of private information

Abstract

This article undertakes analysis of misuse of private information (MPI) caselaw informed by deconstruction and wider literary and critical theory. It specifically considers the rhetorical effect of the ‘balance’ metaphor in MPI caselaw. It starts by providing an account of select theorists who explore the subtle but vital role that metaphor, traditionally viewed as a poetic or literary device, plays in non-literary texts. This account highlights the fundamental role of metaphor in legal discourse. Following this discussion, the article investigates the ‘balance’ metaphor in MPI judgments. It identifies and analyses two distinct ways in which the balance metaphor subtly benefits judicial reasoning. First, it creates an impression of certainty by drawing on connotations of the quantifiable and calculable. Second, it fosters the moral appeal of a decision by alluding to notions of justice and equilibrium. In doing so, the balance metaphor marginalises the non-rational, inexpressible aspects of judicial rights balancing.