Public Interest Defence Research Articles

The Assange Case: Transnational Prosecution of Investigative Journalism

This paper highlights the need to reintroduce the political offence exception to extradition in cases of non-violent crime into UK domestic law and beyond. The article examines the recent developments in the case of WikiLeaks founder Julian Assange with an emphasis on the judicial outcomes in the extradition proceedings before UK courts in matters relevant to freedom of the press. The case makes for an interesting subject because it concerns both objectively a political crime as well as arguably political persecution. The question of extradition is being played out between two closely allied countries which converge in applying their secrecy laws in an increasingly expansive manner crucially encroaching upon standard practices of national security investigative journalism. The article concludes that an introduction of the public interest or affirmative defence and the testimony of purpose into secrecy laws are essential in democratic societies. It further concludes that the evisceration of a political offence exception to extradition in non-violent crimes is a regrettable trend that should be reversed. Said exception is the single most powerful tool in extradition regulation serving to prevent political persecution and it is essential for protecting national security investigative journalists from extradition in cases such as that of Assange.

The ‘chilling effect’ of defamation law in Northern Ireland? A comparison with England and Wales in relation to the presumption of jury trial, the threshold of seriousness and the public interest defence

This article compares defamation law in England and Wales with that of Northern Ireland and analyses whether the current law in Northern Ireland is having a ‘chilling effect’ on free speech. At the time of writing, the Northern Ireland Assembly is formally considering adopting legislation based on the Defamation Act 2013 which reformed the law in England and Wales. The article aims to contribute to that debate in Northern Ireland, but it should also be of broader interest as an analysis of the effectiveness of the Defamation Act 2013. The article focuses on three key areas of reform, in both the Defamation Act 2013 and the Northern Ireland Defamation Bill: the presumption of jury trial, the threshold of seriousness, and the public interest defence. It demonstrates that the different approach of the law in Northern Ireland in these areas did not simply occur with the enactment of the 2013 Act, but rather that it started several years before that with a divergence from developments in the common law in England and Wales. The article argues that the difference has been entrenched by the changes in the 2013 Act, and that, in relation to each of those areas, the law in Northern Ireland is now on a singular course and one that can be seen to have a definite ‘chilling effect’ on free speech.

Taming the ‘Chilling Effect’ of Defamation Law: English Experience and Implications for Australia

The ‘chilling effect’ of defamation law has driven legislative action narrowing this tort’s scope and operation. As substantial reforms come into effect across Australia, this article provides a detailed analysis of how defamation law in the United Kingdom has developed since similarly narrowing reforms took effect there almost a decade ago, and the implications this will have for Australia. Two important aspects of reform in both jurisdictions are the serious harm threshold and the public interest defence. Both are targeted at narrowing the tort and taming its ‘chilling effect’. Although both of these two changes have definitively narrowed the tort in the United Kingdom, neither of them has revolutionised this tort nor abolished its core purpose to protect reputation against false imputations. Given the consistency in legislative purpose and framing of the new provisions as between the two jurisdictions, Australian courts should, consistently with their English counterparts, exercise caution when interpreting the new threshold and the new defence, to ensure they do not tread too far from the deeper principles underpinning the tort, even in its narrower, tamer form.

The ‘chilling effect’ of defamation law in Northern Ireland?

This article compares defamation law in England and Wales with that of Northern Ireland and analyses whether the current law in Northern Ireland is having a ‘chilling effect’ on free speech. At the time of writing, the Northern Ireland Assembly is formally considering adopting legislation based on the Defamation Act 2013 which reformed the law in England and Wales. The article aims to contribute to that debate in Northern Ireland, but it should also be of broader interest as an analysis of the effectiveness of the Defamation Act 2013. The article focuses on three key areas of reform, in both the Defamation Act 2013 and the Northern Ireland Defamation Bill: the presumption of jury trial, the threshold of seriousness, and the public interest defence. It demonstrates that the different approach of the law in Northern Ireland in these areas did not simply occur with the enactment of the 2013 Act, but rather that it started several years before that with a divergence from developments in the common law in England and Wales. The article argues that the difference has been entrenched by the changes in the 2013 Act, and that, in relation to each of those areas, the law in Northern Ireland is now on a singular course and one that can be seen to have a definite ‘chilling effect’ on free speech.

Proposals for copyright law and education during the COVID-19 pandemic

This article asks whether the catastrophic impact of the COVID-19 pandemic justifies new limitations or interventions in copyright law so that UK educational institutions can continue to serve the needs of their students. It describes the existing copyright landscape and suggests ways in which institutions can rely on exceptions in the Copyright, Designs and Patents Act 1988 (CDPA), including fair dealing and the exemption for lending by educational establishments. It then considers the viability of other solutions. It argues that issues caused by the pandemic would not enliven a public interest defence to copyright infringement (to the extent this still exists in UK law) but may be relevant to remedies. It also argues that compulsory licensing, while permissible under international copyright law, would not be a desirable intervention, but that legislative expansion to the existing exceptions, in order to encourage voluntary collective licensing, has a number of attractions. It concludes by observing that the pandemic highlights issues with the prevailing model for academic publishing and asks whether COVID may encourage universities to embrace in-house and open access publishing more swiftly and for an even greater body of material.

Proposals for copyright law and education during the COVID-19 pandemic

This article asks whether the catastrophic impact of the COVID-19 pandemic justifies new limitations or interventions in copyright law so that UK educational institutions can continue to serve the needs of their students. It describes the existing copyright landscape and suggests ways in which institutions can rely on exceptions in the Copyright, Designs and Patents Act 1988 (CDPA), including fair dealing and the exemption for lending by educational establishments. It then considers the viability of other solutions. It argues that issues caused by the pandemic would not enliven a public interest defence to copyright infringement (to the extent this still exists in UK law) but may be relevant to remedies. It also argues that compulsory licensing, while permissible under international copyright law, would not be a desirable intervention, but that legislative expansion to the existing exceptions, in order to encourage voluntary collective licensing, has a number of attractions. It concludes by observing that the pandemic highlights issues with the prevailing model for academic publishing and asks whether COVID may encourage universities to embrace in-house and open access publishing more swiftly and for an even greater body of material.

Proposals for copyright law and education during the COVID-19 pandemic

This article asks whether the catastrophic impact of the COVID-19 pandemic justifies new limitations or interventions in copyright law so that UK educational institutions can continue to serve the needs of their students. It describes the existing copyright landscape and suggests ways in which institutions can rely on exceptions in the Copyright, Designs and Patents Act 1988 (CDPA), including fair dealing and the exemption for lending by educational establishments. It then considers the viability of other solutions. It argues that issues caused by the pandemic would not enliven a public interest defence to copyright infringement (to the extent this still exists in UK law) but may be relevant to remedies. It also argues that compulsory licensing, while permissible under international copyright law, would not be a desirable intervention, but that legislative expansion to the existing exceptions, in order to encourage voluntary collective licensing, has a number of attractions. It concludes by observing that the pandemic highlights issues with the prevailing model for academic publishing and asks whether COVID may encourage universities to embrace in-house and open access publishing more swiftly and for an even greater body of material.

Proposals for Copyright Law and Education During the COVID-19 Pandemic

This article asks whether the catastrophic impact of the COVID-19 pandemic justifies new limitations or interventions in copyright law so that UK educational institutions can continue to serve the needs of their students. It describes the existing copyright landscape and suggests ways in which institutions can rely on exceptions in the CDPA, including fair dealing and the exemption for lending by educational establishments. It then considers the viability of other solutions. It argues that issues caused by the pandemic would not enliven a public interest defence to copyright infringement (to the extent this still exists in UK law) but may be relevant to remedies. It also argues that compulsory licensing, while permissible under international copyright law, would not be a desirable intervention, but that legislative expansion to the existing exceptions, in order to encourage voluntary collective licensing, has a number of attractions. It concludes by observing that the pandemic highlights issues with the prevailing model for academic publishing, and asks whether COVID may encourage universities to embrace in-house and open access publishing more swiftly and for an even greater body of material.

Innovation and Reform: Applying New Zealand's Public Interest Defence in Defamation to Social Media and Blogs

The proliferation of social media and the rise of 'citizen journalists' were one of many reasons why the Court of Appeal in Durie v Gardiner recognised the existence of a public interest defence of responsible communication to defamation in New Zealand. The courts, however, are beginning to take a restrictive interpretation of the criteria under responsible communication to the detriment of social media users and bloggers, following experiences in England and Canada. This paper argues that the defence should be reformed for a social media age by adopting a standard based on reasonableness along Hilary Young’s model in Canada, replacing the criteria under responsible communication for all types of media in New Zealand. It then explains how a sliding scale derived from the New Zealand Bill of Rights Act 1990 can be incorporated into the defence. The paper also recommends the creation of multiple voluntary codes for social media which can inform the meaning of reasonableness and the inclusion of statements of reply as a relevant factor. It concludes by offering an example of where reasonableness can lead to a different result from responsible communication.

Copyright in Digital Television Broadcasting in Kenya: An Analysis of the Royal Media Services Case

Kenyan superior courts missed an opportunity to discuss and authoritatively settle the law on the nature of copyright in broadcasts and the effect of the must carry rule in digital broadcasting through their decisions in the Royal Media Services case. The Supreme Court, in arriving at its decision, failed to be guided by Kenyan law on copyright in broadcasts and the must carry rule in three key areas. First, the Supreme Court relied on the Philippines’ decision on the definition of a broadcasting organisation without considering the provisions of the Copyright Act (Chapter 130) and the Kenya Information and Communication Act (Chapter 411). Second, the Supreme Court relied on the doctrine of fair use as envisaged in the Philippines copyright regime, yet Section 26 of the Kenyan Copyright Act provides for fair dealing. Third, the Supreme Court relied on the public interest defence without discussing its basis and establishing its parameters, especially since public interest is not provided for in Copyright Act. The Supreme Court erred in determining that rebroadcasting of local broadcasts by subscription television licencees was not an infringement of copyright in broadcast.

Issues in Australian Foreign Policy

Issues in Australian Foreign Policy

Do Corporate Environmental Contributions Justify the Public Interest Defence?

Corporations make significant direct contributions to environmental improvement and also indirect contributions, through expenditure on process and product innovation. Environmental protection is a public good and so may be under-supplied in a competitive environment. European law requires competition authorities to consider public interest arguments. The public interest defence for allowing a cartel to operate is based on the argument that the additional profitability induces cartel members to make greater environmental contributions that more than offset the welfare loss due to non-competitive pricing. We explore profit-seeking motivations for the corporate environmental expenditures, leaving aside corporate social responsibility concerns. Two motives are considered: environmental improvement leading to reduced production costs, and publicized environmental expenditures boosting brand image. Allowing the operational firms to form a cartel and raise prices above Nash equilibrium levels always reduces environmental quality and consumer welfare. As a consequence, we find no support for the public interest defence.

The developing law of privacy and the limits to the public interest defence: the Grand Chamber judgment in Couderc and Hachette Filipacchi Associés v France

ABSTRACTIn its latest judgment dealing with the right to privacy of members of the Monegasque royal family the Grand Chamber of the Strasbourg Court developed the right to privacy of public figures and the defence of public interest. In a unanimous ruling, the Grand Chamber found a violation of the right to freedom of expression of the publishers of Paris Match. It considered that the public had a legitimate interest in being told that Prince Albert of Monaco had a son. The Court's judgment however, strongly affirmed the importance of the right to privacy and enhanced the protection of article 8 of the Convention in three ways. First, by asserting the limits of the public interest defence, which cannot be relied upon to justify publications concerning purely private matters that have the sole aim to satisfy the appetite of curious readers. Second, by confirming that the public interest defence is only available where the media acts in ‘good faith’ and that the veracity of a publication is an important consideration in privacy cases. Finally, by requiring consent in advance of publication of strictly private matters in the absence of overriding exceptional circumstances.

Disclosure of Confidential Information to Protect the Patient: The Role of Legal Capacity in the Evolution of Professional Guidance

There are a number of exceptions to the general rule that patients at risk of harm because they withhold consent to doctors disclosing their confidential information should be respected. Disclosure may be mandated by law or the patient may lack capacity under the Mental Capacity Act 2005. Beyond this, the law is vague and professional guidelines differ in approach. The public interest defence operates to protect third parties. The General Medical Council's 2009 guidance on confidentiality accepts that it might also apply to prevent harm to the patient. This article argues that to do so could be contrary to legislative intent and has potential to contravene the patient's human rights. The article proposes that decisions taken in the best interests of patients should be limited to those situations in which patients lack capacity to consent. It explores the recently extended ambit of the test for capacity at common law which may facilitate a clearer approach to disclosure decisions which will improve compliance with the liberal ethos of the Mental Capacity Act and aid conceptual consistency.

Pre-empting conflict – a re-examination of the public interest defence in Uk copyright law

It is over 10 years since the Court of Appeal confirmed the legitimacy of the public interest defence in copyright law in Ashdown v Telegraph Group Ltd. However, remarkably little is still known about the defence's function and scope. Indeed, acknowledgement of its unfathomability has become something of a commonplace of copyright jurisprudence and scholarship. This situation contrasts sharply with the position in other related areas of law, such as breach of confidence and defamation, in which courts have made dramatic strides in recasting doctrine to protect ‘public interest’ disclosures. Developments in EU copyright law have also plunged the defence into a renewed crisis of legitimacy. The time is therefore ripe for a reconsideration of the role of the public interest defence in UK copyright law. In this paper, an attempt is made to understand its implicit rationale and scope. It is argued that the existing jurisprudence reflects a persistent concern about copyright's potential to subvert policy outcomes generated by alternative regulatory systems and that the defence is to be viewed as a form of pre-emption doctrine, allowing courts to avoid the explicit rules established under the CDPA in circumstances in which their application would frustrate the outcomes of other more appropriate forms of regulation.

Viešojo intereso nustatymas ‒ objektyvieji kriterijai

The aim of this article is to identify objective criteria for the determination of public interest concept in the case-law of the Republic of Lithuania. Legal practice and legal doctrine universally agree that there are lot of difficulties defining the concept of public interest. The authors of this study explored that neither statutory law nor case law practice or legal doctrine are able to serve general public interest definition. Despite this fact, the authors tried to determine basic legal objective criteria in order to establish whether the public interest could be established and defended in a particular case. The article is divided into two main parts. The comparative doctrine and case law analysis of public interest concept is given in the first part. The second part includes studies of the precedents of court judgments, where legal objective criteria are identified. The authors established ten basic legal objectives criteria, which may be quantitative and qualitative. In addition, supplementary objective criteria are also crystallised. This study provides objective legal criteria to identify public interest. These legal objective criteria may serve as a methodical measure for all lawyers to propose a wellreasoned legal conclusion whether the public interest in a particular case exists or not. Firstly, the objective criteria should be determined. Only after that, the algorithm of qualitative objective criteria should be applied. These qualitative objective criteria are the following: was there made the breach of the main constitutional principles; was there determined the fault of subjects; does the breach constitute mightily negative legal consequences; is the defence of public interest still relevant; what are the terms of the limitation period; what were the actions of infringer before, during and after the breach of law; evaluation of the principle of proportionality; dissociation of the subjective right and interest, protected by the law; evaluation of ordinary tests. Additional criteria may also be applied if it is requested in specific legal relationships, e.g., were there implemented the main principles of proper public administration, etc. Documents analysis and systemic methods were applied during the research. The analysis was supported by teleological and comparative methods.

Libel win reveals need for reform

Campaigners in Britain argue for public-interest defence.

Defences Under the Protection of State Information Bill: Justifications and the Demands of Certainty

The Protection of State Information Bill (the Bill) has been heavily criticised on several grounds, including that it contains no 'public interest' defence. However, when properly understood, the Bill does contain a public interest defence, or at least, it contains the basis on which disclosing or possessing classified information may be recognised as the right thing to do - as justified - and therefore as lawful and not subject to criminal liability. This defence operates on the requirement of unlawfulness, required for all criminal liability. Unlawfulness requires courts to engage in a balancing exercise of the values, interests and rights of the respective parties. This makes the requirement of unlawfulness the primary mechanism by which the criminal law may honour its constitutional obligations to develop and give expression to the values and rights in the Constitution. This defence, together with some others, may be recognised as a function of very basic, but well recognised, principles of criminal law - as informed by the values in the Constitution of the Republic of South Africa, 1996. Once this is recognised, it seems necessary for this defence to be expressly set out in the Bill in order to avoid violating the principle of certainty and ultimately the rule of law.

British Journalism Review

Bad behaviour is nothing new or unexpected in newspapers or broadcasting. In many ways the history of the press is the story of conflict between the people who want to conceal secrets and the journalists who want to reveal them. Nobody dare assert that matters of public interest were not involved in many, if not the majority, of them, but the same cannot be said of the exploits of the mobile phone hackers. So far nothing has emerged to provide them with a public-interest defence for their activities. They are simply a disgrace. The elimination by newspapers and other media of an unsavoury practice is of paramount important.

The defence of public interest and the intrusion of privacy

The article examines the relationship between the public interest and the right to privacy, with the focus on journalistic practice and new values, and the general growth of social surveillance. The article then draws on a series of in-depth interviews with UK media regulators and media interest groups. These were in turn followed by a series of focus groups, leading to the development of a UK national sample survey. The research offers the basis for a more complex analysis of the factors involved in judging the relative rights of the media to intrude and individuals’ rights to be protected from intrusion. Central to this analysis is the development of a new concept - ‘social importance’. Unlike the established concept of ‘public interest’, social importance is readily operationizable, scalable in terms of intensity, in its potential applications.