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Privacy law and the media

University of British Columbia

This thesis explores the issue of how to reconcile the value of individual privacy with that of freedom of speech. It argues that there ought to be legal protection against invasion of privacy by the media, and that such protection should be seen as complementary to a system of free expression rather than opposed to such a system. A definition of privacy is outlined which, it is contended, meets the criteria for a coherent, neutral definition. Various reasons for valuing privacy and in favour of protecting the individual's reasonable expectations of privacy are identified. It is argued that lack of precision in the normative realm, in defining with certainty when privacy is invaded, should not be an excuse for leaving the individual without legal protection. There follows an examination of the protection of privacy against media incursions in English, New Zealand, Australian and Canadian law, other than the coincidental protection afforded by certain common law actions. There has been significant judicial and legislative recognition of the need to safeguard privacy interests, and many interesting developments in recent years are discussed. However, none of the countries considered has yet developed effective recourse for victims of unwarranted and invasive publications. It is argued that the relationship between privacy and free speech has been wrongly conceptualised, and that in fact both interests serve the same underlying set of values. Problems arise when privacy and free speech interests are balanced in the abstract rather than in context, and when a simplistic view of press freedom is adopted in disregard of the realities of the modern mass media. Invasive publications generally do not significantly advance free speech interests unless they help to provide the information needed for public decision-making. Furthermore, this information can in many cases be conveyed without detriment by withholding details which disclose identity. A three-step test is proposed to determine whether privacy and free speech interests can be reconciled without compromise to either of them, or whether it is necessary to balance these interests in the context of the case. It will also be maintained that a contextual approach is preferable to the adoption of categories such as "public figures" and "public places". These concepts tend to be misleading, and should be eschewed as analytical tools, since they confuse important questions which require separate analysis.

Text

2010-09-30

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http://hdl.handle.net/2429/28826

Law

University of British Columbia

Graduate