Building on Campbell to develop a new tort of publicity rights in England for the AI age

Traditionally, English common law has not recognized a tort of invasion of privacy.1 Instead, English courts have developed (in a line of cases including Campbell v MGN2 and Douglas v Hello! (No. 3)3) a tort of misuse of private information, which is often described as protecting ‘an aspect of privacy’.4 The impetus for this development has been the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), incorporated into UK law by the Human Rights Act 1998 (HRA). The HRA does not directly create a civil cause of action based on privacy. However, it does oblige the courts to act consistently with the rights protected by the ECHR, and therefore to provide meaningful protection for the right to respect for private and family life (Article 8 ECHR), balanced, as appropriate, with the right to freedom of expression (Article 10 ECHR). This protection was initially ‘absorbed’ into the longstanding equitable action for breach of confidence.5 However, it became increasingly clear that breach of confidence and misuse of private information rest on different legal foundations and protect different interests.6 Ultimately, misuse of private information was recognized as a distinct tort.7 The latest case to confirm both this position and the English courts’ approach to the tort is PJS v News Group Newspapers Ltd.8

Was society’s response adequate in the cases of Mrs Pretty and Ms B? On the 11th of May, less than two weeks after losing her final legal appeal, Mrs Diane...

The Chagos Islanders and International Law

This chapter examines the approach of the English courts, especially the House of Lords and Supreme Court, to the protection of personal information since the advent of the Human Rights Act 1998. The new action for ‘misuse of private information’ is analysed critically; its drawbacks and difficulties considered. The author questions the analysis of ‘private life’ adopted by both the European Court of Human Rights and the English courts, and proposes an alternative based on the identification and protection of personal information.

Chapter 7 states that the English common law does not provide generalised rights against misappropriation of image or unfair competition. Claimants rely on a specific civil wrong such as the tort of passing off or the equitable wrong of breach of confidence. The extension of passing off to cover misappropriation of another’s image for unauthorised advertising or false endorsement changes the nature and rationale of the tort: it involves misappropriation rather than misrepresentation and ignores the usual requirement of confusing the public as to the source of goods or services. The basic requirement of the law on confidentiality, that information is no longer confidential if it becomes public knowledge, is not appropriate in breach of privacy cases. So where personal information has been disseminated to the public, the English courts have recognised that there is good reason, based on privacy, to prevent its further dissemination to the public. If the English common law provides wider privacy protection, it could spawn a right of publicity as in the USA but has not yet done so.

The British House of Lords recently considered whether Augusto Pinochet was entitled to immunity from arrest and possible extradition to Spain for human rights abuses allegedly committed during his reign as Chile?s head of state. In its second decision in the case (after the first one was vacated due to a conflict of interest), the House of Lords concluded that Pinochet was not entitled to immunity for acts of torture and related conduct committed after Britain?s 1988 ratification of an international convention against torture. In addressing this immunity issue, the parties and judges in the Pinochet case looked closely at the large and growing body of U.S. case law involving civil suits against foreign officials for alleged human rights abuses committed in foreign countries. In this article, we in effect do the opposite: we assess how the Pinochet decision might be relevant to international human rights litigation in U.S. courts. The article focuses on three issues in particular. It first considers whether developments in international human rights law limit the scope of the domestic immunity available to foreign governments and officials. The House of Lords held that these developments did limit the scope of Pinochet?s immunity from criminal process in Great Britain. In the United States, however, the political branches and the federal courts have, with narrow and specific exceptions, declined to permit developments in international human rights law to limit the scope of foreign sovereign immunity from civil process. As we explain, the adverse political consequences that might flow from otherwise-unfettered private lawsuits against foreign officials for human rights abuses justify the broader immunities available in U.S. domestic courts. The second issue is the legitimacy of a U.S. counterpart to the British rule, invoked by some of the Law Lords in Pinochet, that customary international law ("CIL") is part of the British common law. In the United States, plaintiffs and scholars have argued for a similar rule of incorporation to justify the domestic application of substantive international human rights law. As we explain, however, the constitutional implications of an automatically-incorporated CIL are substantially different for the United States than they are for Great Britain. And, when faced with claims of international immunity, such as the claim of head-of-state immunity that was at issue in Pinochet, U.S. courts do not apply the CIL governing this immunity directly. Instead, they seek and follow political branch authorization. The failure by courts to apply CIL as automatically-incorporated common law in this context, involving traditional rules of CIL that are a central component of international relations, casts substantial doubt on the conventional wisdom that international human rights law should be applied as self-executing federal common law. Finally, the article defends the United States? general resistance to the domestic application of international human rights law. This resistance has two dimensions. First, the United States does not apply international human rights law to domestic officials. This approach is justified by the profound uncertainty regarding the source and content of international law, and the general adequacy of U.S. domestic human rights protections. Second, the United States permits the domestic application of international human rights law against foreign governmental officials, but only in very narrow contexts. This limited embrace of international human rights law reflects a legitimate concern with giving private citizens, and unelected judges, too much influence over U.S. foreign relations. As we explain, both of these justifications for resistance to the domestic application of international human rights law ? the vagueness of international norms and the danger that private lawsuits will interfere with foreign relations ? find support in the House of Lords? decision in Pinochet.

Navigation is a public right. Navigation is not a governmental right. These two concepts are key to understanding the navigational freedom principle. The public navigation right is held in public trust, as applied under municipal law and international law both by trustee municipal governments and by the international trustee collective community of governments. The source of this public right to navigation is intriguingly ancient, and became refined in international law beginning with the high seas regime debates of the 17th century publicists. The public navigation right is protected under English municipal law of the same era within the Royal Prerogative jus publicum. The interface of the public navigation rights under international law and English municipal law came about in the Selden/Grotius dispute over occupation and possession of maritime areas, which formed the fulcrum and crucible for development and evolution of the navigational freedom principle as juridically manifest in navigational servitudes.Keywords: 17th century publicists; international law; international trustee collective community; municipal law; navigational servitudes; public navigation right; Royal Prerogative; trustee municipal governments

Jehovah's Witness blood policy

did not intend to legislate contrary to the ECHR. Therefore, if during the course of statutory interpretation there were two possible interpretations, one in conformity with the Convention and one not in conformity with the Convention, the interpretation in conformity with the Convention should be preferred. The House of Lords, however, was careful to stress that it should not be

The English legal system is based on the common law. The common law system in England and Wales developed from the decisions of judges whose rulings over the centuries have created precedents for other courts to follow and these decisions were based on the ‘custom and practice of the Realm’. The system of binding precedent means that any decision of the Supreme Court—the new name for the former House of Lords (the highest court in the UK)—will bind all the lower courts, unless the lower courts are able to distinguish the facts of the current case and argue that the previous binding decision cannot apply, because of differences in the facts of the two cases. However, since the UK joined the European Union (EU), the decisions of the European Court of Justice (ECJ) now supersede any decisions of the domestic courts and require the English national courts to follow its decisions. (Scotland has a system based on Dutch Roman law, and some procedural differences although no fundamental differences in relation to employment law.) The Human Rights Act 1998 became law in England and Wales in 2000 (and in Scotland in 1998) in order to incorporate the provisions of the European Convention on Human Rights into UK law. The two most important Articles applicable to employment law are Article 8(1), the right to respect for privacy, family life, and correspondence, and Article 6, the right to a fair trial.

In Derbyshire County Council v Times Newspapers,1 the House of Lords ruled that local authorities may not sue in libel. This decision affirmed a decision of the Court of Appeal,2 but on a significantly different basis. The Court of Appeal had held that the common law was ambiguous as to whether local authorities may sue for libel, and that therefore recourse to the European Convention on Human Rights was justified. After consulting the Convention, the Court of Appeal decided that such suits should not be allowed. The House of Lords noted the approach of the Court of Appeal, but concluded that recourse to the Convention was not necessary. Lord Keith, giving the only speech,3 stressed that he was basing his decision 'upon the common law of England, without finding any need to rely upon the European Convention.'4 This note will first consider the arguments used by Lord Keith in the House of Lords, and will then go on to discuss the issues raised by the Court of Appeal that have been left unresolved by the Lords. This discussion will illustrate four key mysteries which have been left unresolved by this case.

The ‘Neutral Reportage’ Doctrine in English Law

Ansel Adams, the celebrated pioneer of landscape photography, observed that ‘not everybody trusts paintings but people believe photographs’. Whereas a painting is subjective, a photograph is accepted almost axiomatically as an accurate depiction of reality, and society’s faith in photography’s veracity has continued through its evolution to film and digital media. Indeed, when referring to the speed of frames shown in motion pictures, French filmmaker Jean-Luc Godard expressed that while ‘photography is truth, cinema is truth twenty-four times per second’. Even as photographers and film studios continue to push the boundaries of visual arts through Photoshop and computer-generated special effects, the public has largely been capable of appreciating the distinction between the fanciful from the factual and the artistic from the authentic. The deepfake video now challenges this paradigm and does so on an unprecedented scale. Some early commentary out of California1 suggests sui generis laws to address deepfakes are not necessary because existing legal doctrines are sufficient if applied correctly. This assertion is supported by the fact that California explicitly recognizes an individual’s legal right to control and commodify the expression of their image. As courts in the UK do not recognize such a right, one may query whether an individual can protect herself against a malicious deepfake under English law.2 From this question stems the idea that the ‘Golden State’ of California may be able to provide a ‘golden’ standard for image rights in the age of the deepfake. While comparisons between American and English image rights are not new, the novelty of deepfake technology warrants a renewed analysis. Furthermore, this article offers a departure from many others on the subject because it measures English laws against those of California specifically, rather than a survey of laws across several American states.

Do Deepfakes Pose a Golden Opportunity? Considering Whether English Law Should Adopt California's Publicity Right in the Age of the Deepfake

Text, Cases and Materials on Public Law and Human Rights integrates a diverse and contemporary collection of cases and materials with an authoritative narrative commentary from two leading academics in the fields of public law and human rights. The text intersperses extracts from leading cases, academic commentary and parliamentary and governmental material to produce an all-encompassing student companion to constitutional, administrative and UK human rights law. This third edition has been fully updated and includes coverage of: the Governance of Britain reform package and the Constitutional Reform and Governance Act 2010, the Constitutional Reform Act and the new Supreme Court, the Serious Organised Crime and Policing Act 2005 and the impact of anti-terrorism legislation on the rule of law and police powers. There is comprehensive coverage of the Jackson case, Bancoult and the royal prerogative, the 2008 White Paper on Lords reform, the impact of the Parliamentary Standards Act 2009 and the Kelly Report on parliamentary privilege, and of the Wright Committee Reforms on the Commons. There is in-depth discussion of the latest leading cases in judicial review and key decisions under the Freedom of Information Act. Furthermore, the book includes extensive coverage and analysis of a range of recent developments in the human rights field, including the key Human Rights Act cases of Belmarsh, Re P, Huang and YL and the Strasbourg decisions in the Marper (DNA) case and A v UK on detention without trial; the Austin and Laporte decisions on public order in the House of Lords are discussed together with the latest leading cases on freedom of expression. The possibilities of repeal of the Human Rights Act and of the future introduction of a British Bill of Rights are given consideration.