This chapter attributes the discrepancies in privacy and defamation law in the US and UK decisions to the greater use of paternalistic decision making in the latter jurisdiction, but not the former. Whereas English judges, in defamation and privacy cases, are amenable to determining not only the fact but the extent of public interest expression at stake in these cases, US judges are more reticent. The UK approach, though, is deeply problematic, and unprincipled. UK judges have become too enamoured with the idea that they can discern the contribution of expression to audiences and thus use this metric as part of the balancing test in privacy and the public interest defence in defamation law. By doing so, they betray the antipaternalism principle inherent in the liberal tradition. Conversely, US judges, in the tradition of Oliver Wendell Holmes, have seen the importance of this value clearly enough. Judges, specifically, and governments, generally, are singularly unqualified to determine the value of speech. To conclude otherwise is to compromise the free speech guarantee.
Robin D. Barnes and Paul Wragg
This chapter addresses the phenomenon of social media use to hold sports personalities to account for perceived lapses of moral judgement. There have been many examples, in the US and UK, in which sporting figures have been outed and then pilloried through social media for privately held racist, sexist or homophobic outlooks. These mob-handed campaigns ridicule and ostracise, and coerce repentance and conformity. Although the problem straddles public and private law issues, this chapter explores the adequacy of private law to afford either meaningful protection or compensation to those affected. To keep matters manageable, this chapter will focus on UK law. It will be argued that although the threat to individuality raises genuine issues of privacy invasion, the law offers only thin protection to victims. Building upon the work of Wragg, it will be argued that the misuse of private information tort may be developed so that victims are protected from coercive uses of social media to regulate their moral behaviour. This chapter expands upon the meaning of coercion for these purposes. Keywords: social media; privacy; freedom of expression; human rights; harm; liberty