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Tackling online false information in the United Kingdom: The Online Safety Act 2023 and its disconnection from free speech law and theory* Journal of Media Law Pub Date : 2024-02-20 Peter Coe
It is commonly recognised that the publication of false information can be harmful to the public sphere. The Online Safety Act 2023 places statutory responsibilities on regulated services to preven...
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What can a media privilege look like? Unpacking three versions in the EMFA Journal of Media Law Pub Date : 2024-01-31 M. Z. van Drunen, C. Papaevangelou, D. Buijs, R. Ó. Fathaigh
The media privilege has been one of the most controversial aspects of the proposed European Media Freedom Act (EMFA). However, it is important not to assess the drawbacks of the media privilege in ...
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Media freedom and journalist safety in the UK Online Safety Act Journal of Media Law Pub Date : 2024-01-25 Ricki-Lee Gerbrandt
In the digital era, journalists are targeted with online abuse including serious threats of violence. These censorship tactics are a direct threat to media freedom. Although the UK Government inten...
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Sanchez v France: ECtHR judgment raises questions about politician’s liability to moderate his own Facebook ‘wall’ Journal of Media Law Pub Date : 2023-12-07 Päivi Korpisaari
A politician was fined for not removing Islamophobic comments posted by third parties on his public Facebook ‘wall’. Whereas the Court had previously given special protection to political debate, i...
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Hansman v Neufeld: The Supreme Court of Canada protects counterspeech under anti-SLAPP law, but is it even defamatory? Journal of Media Law Pub Date : 2023-12-07 Hilary Young
The Supreme Court of Canada’s most recent pronouncement on defamation and anti-SLAPP law concerns allegations of bigotry. While the Court protected these allegations as valuable counterspeech, the ...
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Defining the ‘media’ in Europe: pitfalls of the proposed European Media Freedom Act Journal of Media Law Pub Date : 2023-07-31 Theresa Seipp, Ronan Ó Fathaigh, Max van Drunen
This comment examines the definition of ‘media’ under the recently-proposed European Media Freedom Act (EMFA), and highlights its potential flaws, while pointing to possible considerations for futu...
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Rethinking journalism protection: looking beyond copyright Journal of Media Law Pub Date : 2023-07-19 Claudio Lombardi
Journalism plays a crucial role in providing reliable information and holding those in power accountable. However, newspapers have experienced a significant drop in profitability, with digital plat...
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Inference of serious harm in the context of online publications past their peak and after the public interest defence falls away: Banks v Cadwalladr Journal of Media Law Pub Date : 2023-07-16 Mark Patrick Hanna
In Banks, the Court of Appeal agreed with the trial judge that serious harm needs to be reassessed once the public interest defence falls away but disagreed about the assessment of serious harm ari...
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Liberal democracy, law and the citizen speaker: regulating online speech Journal of Media Law Pub Date : 2023-06-06 Helen Fenwick
Published in Journal of Media Law (Vol. 15, No. 1, 2023)
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Interpretation is opinion: realigning the fact/opinion distinction in English defamation law Journal of Media Law Pub Date : 2023-06-01 Thomas DC Bennett
Statements that interpret the words of others are – by their nature – interpretative. Their meaning is contingent and (inter)subjective; it is something that those who encounter those words or acti...
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The right to de-referencing ‘manifestly inaccurate’ information: TU, RE v Google Journal of Media Law Pub Date : 2023-05-24 Laroussi Chemlali, Leila Benseddik
On 8 December 2022, the Court of Justice of the European Union (CJEU) issued a judgment in case TU, RE v Google (C-460/20) as a step forward in shaping the right to de-referencing. After an overvie...
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Raab’s bill of rights and the challenges inherent in attempting a statutory re-balancing of articles 8 and 10 ECHR Journal of Media Law Pub Date : 2023-05-23 Helen Fenwick
This article explores the right-wing tendency to parade the creation of greater protection for free speech as a key basis for revision or repeal of the Human Rights Act. To illustrate that point it...
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Introduction Journal of Media Law Pub Date : 2023-03-15 Jacob Rowbottom
Published in Journal of Media Law (Vol. 14, No. 2, 2022)
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The case for a media and communications public participation court Journal of Media Law Pub Date : 2023-02-15 Sarah Palin
ABSTRACT This comment looks at the current controversies surrounding the strategic use of libel law to silence and intimidate investigative journalists. Much of the problem flows the cost of litigation in defamation. The comment proposes a model for reform based on the streamlined procedure used in the Intellectual Property Enterprise Court, in which recoverable costs are subject to a cap. The comment
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Knowledge institutions in constitutional democracy: reflections on ‘the press’ Journal of Media Law Pub Date : 2022-12-22 Vicki C. Jackson
ABSTRACT Knowledge institutions—understood as ongoing entities with a central purpose of creating or disseminating knowledge according to disciplinary standards—are central to the workings of a constitutional democracy. The press is made up of knowledge institutions that should be recognized as such. Moreover, and contrary to the suggestions of some jurists, the press can be reasonably defined, without
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Transgender reporting in the British press: editorial standards and discursive harms in the post-Leveson era Journal of Media Law Pub Date : 2022-12-05 Dimitris Akrivos
ABSTRACT This article looks at transgender media representations from the aspect of press regulation which is so far under-researched. Placing the analysis within the fragmented post-Leveson UK press landscape, it examines the two UK press watchdogs’ provisions relating to transgender reporting. The study evaluates IPSO’s and IMPRESS’ editorial standards through the lens of queer legal theory, offering
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From Delfi to Sanchez – when can an online communication platform be responsible for third-party comments? An analysis of the practice of the ECtHR and some reflections on the Digital Services Act Journal of Media Law Pub Date : 2022-11-24 Päivi Korpisaari
ABSTRACT While social media services offer a useful platform for obtaining information as well as presenting and commenting on opinions, people can still be silenced by fear of hate speech and insults on the Internet. As a result, the expanded freedom of expression can also reduce the range of opinions and information. This article identifies and analyses the conditions under which online communication
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Privacy, defamation and ZXC v Bloomberg Journal of Media Law Pub Date : 2022-11-11 N. A. Moreham
ABSTRACT The significance of the Supreme Court decision in ZXC v Bloomberg extends well beyond recognition of the ‘starting point’ that, up to the point of charge, a person who is subject to police investigation has a reasonable expectation of privacy in respect of information about it. The Supreme Court's willingness to use the privacy tort to protect a claimant's reputational interests (based largely
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Privacy and defamation in ZXC: some concerns about coherence Journal of Media Law Pub Date : 2022-11-09 Jeevan Hariharan
ABSTRACT This contribution considers the way that defamation law features in the Supreme Court's analysis of the misuse of private information tort in ZXC v Bloomberg LP. The court, it is argued, is markedly reluctant to accept that the operation of the privacy action is impacted by the law of defamation. Exploring the question of damages helps to show that this approach raises concerns about the law's
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Where public interest and public benefit meet: the application of charity law to journalism Journal of Media Law Pub Date : 2022-11-09 Steven Barnett, Tom Murdoch, Judith Townend
ABSTRACT Under-investment in public service journalism has led to growing interest in the possibility of philanthropic support for the sector. Though long associated with non-profit journalism in North America, there is little tradition of philanthropy in UK journalism. This paper explains how recognition of public interest journalism as charitable can be achieved through more constructive interpretations
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Supreme Court confirms suspects’ privacy rights: the judgment clarified, two criticisms answered Journal of Media Law Pub Date : 2022-11-07 Gavin Phillipson
ABSTRACT This Note clarifies the core finding of the Supreme Court, explains why it does not pose the threat to press freedom some media commentary has alleged, and addresses two issues arising from the complex relationship between confidentiality and privacy.
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Confidence, privacy, and incoherence Journal of Media Law Pub Date : 2022-11-02 Thomas D. C. Bennett
Published in Journal of Media Law (Vol. 14, No. 2, 2022)
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Defendant anonymity until charge, the presumption of innocence and the taxonomy of misuse of private information Journal of Media Law Pub Date : 2022-11-02 Robert Craig
ABSTRACT This note welcomes the judgment in ZXC and in particular the humane and nuanced recognition of reality. The general public do not draw the technical distinctions that professionals and carefully guided juries do on the presumption of innocence. The extension of anonymity until charge is a welcome outcome. The note also considers the taxonomy of the area, responding to the note by Tom Bennett
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SLAPPed by the GDPR: protecting public interest journalism in the face of GDPR-based strategic litigation against public participation Journal of Media Law Pub Date : 2022-10-10 Melinda Rucz
ABSTRACT Strategic litigation against public participation is a threat to public interest journalism. Although typically a defamation claim underpins a SLAPP, the GDPR may serve as an alternative basis. This paper explores how public interest journalism is protected, and could be better protected, from abusive GDPR proceedings. The GDPR addresses the tension between data protection and freedom of expression
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The constitutional turn: balancing copyright and freedom of expression in English law Journal of Media Law Pub Date : 2022-09-22 Richard Arnold
ABSTRACT This article considers case law from the courts of England and Wales on the balance between copyright and freedom of expression and how this has developed over the last 50 years or so. Although there has been no fundamental change in the approach of the English courts to this issue, the enactment of the Human Rights Act 1998 and the jurisprudence of the Court of Justice of the European Union
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Countering hate speech in context: positive freedom of speech Journal of Media Law Pub Date : 2022-08-30 Anjalee de Silva, Andrew T. Kenyon
ABSTRACT Hate speech analyses commonly evaluate restrictions on speech or the value of speaking back. Free speech’s negative dimensions are used when assessing restrictions, but the freedom’s positive dimensions are less often considered in relation to counterspeech. Even so, negative and positive dimensions of free expression are always relevant for responses to vilification, and the freedom’s positive
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The competence of non-lead supervisory authority under the EU GDPR’S one-stop-shop mechanism: CJEU judgment in Facebook and Others (C-645/19) Journal of Media Law Pub Date : 2022-08-16 Laroussi Chemlali
ABSTRACT On 15 June 2021, the Court of Justice of the European Union (CJEU) ruled in case C-645/19 between Facebook and the Belgian Data Protection Authority. The CJEU offered some clarification on the General Data Protection Regulation’s (GDPR) one-stop-shop mechanism. In particular, the Court addressed the question of whether a national supervisory authority that is not the lead authority can bring
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Impartiality in United Kingdom broadcasting Journal of Media Law Pub Date : 2022-07-07 Thomas Gibbons
ABSTRACT Television service providers in the UK are required to preserve due impartiality as respects all matters of political or industrial controversy and matters relating to current public policy. In RT v Ofcom, in a judicial review of the regulator’s decisions that the Russian owned television station RT had breached the rules, the Court of Appeal upheld the regulator’s application of the rules
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Regulating hate speech and disinformation online while protecting freedom of speech as an equal and positive right – comparing Germany, Europe and the United States Journal of Media Law Pub Date : 2022-06-25 Mathias Hong
ABSTRACT When regulating hate speech and disinformation online, first, do not suppress ideas or viewpoints as such, second, protect speech and other fundamental rights as positive freedoms, not only vertically but horizontally too, and, third, counteract private disinformation as well as government disinformation.
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Compensation for loss of control over personal data Journal of Media Law Pub Date : 2022-06-18 John Hartshorne
ABSTRACT This commentary examines the Supreme Court’s decision in Lloyd v Google LLC. It outlines the background to the claim and the legal ruling in the case. It considers the implications of the decision for claims relating to loss of control over personal data, and the potential relevance of the decision to claims for compensation under the UK General Data Protection Regulation and Data Protection
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A thumb on the scale: measures short of a prohibition to combat hate speech Journal of Media Law Pub Date : 2022-06-17 Jacob Rowbottom
ABSTRACT While debates on hate speech often focus on the case for banning certain types of expression, this article will focus on less restrictive alternatives. The article will consider the denial of a benefit normally granted to speakers, media regulations and government sponsored speech to counter messages of hate. Such measures, it is argued, are more proportionate than an outright ban and do not
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Media freedom in the age of citizen journalism Journal of Media Law Pub Date : 2022-06-11 András Koltay
Published in Journal of Media Law (Vol. 14, No. 1, 2022)
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Hate speech online: the government as regulator and as speaker Journal of Media Law Pub Date : 2022-06-11 Thomas Hochmann
ABSTRACT Acknowledging that the government is a user of social networks may help us to better understand its attempt to regulate them. This paper draws on the French case to show different ways of regulating hate speech online. It then turns to the peculiar case of hate speech expressed by the government. There are good reasons to consider that government hate speech can be restricted in Europe as
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Platform regulation of hate speech – a transatlantic speech compromise? Journal of Media Law Pub Date : 2022-06-02 Uta Kohl
ABSTRACT This paper argues that the binary opposition in the treatment of hate speech in the US and Europe hides non-binary preoccupations that reflect different primary fears which do not fall along the same ‘scale’. European liberal democracies fear the consequences of hate speech being left uncensored in the public domain (a WHAT concern) whilst America fears the consequences of content interventions
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The Draft Online Safety Bill and the regulation of hate speech: have we opened Pandora’s box? Journal of Media Law Pub Date : 2022-06-01 Peter Coe
ABSTRACT In thinking about the developing online harms regime (in the UK and elsewhere) it is forgivable to think only of how laws placing responsibility on social media platforms to prevent hate speech may benefit society. Yet these laws could have insidious implications for free speech. By drawing on Germany’s Network Enforcement Act I investigate whether the increased prospect of liability, and
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Liability for third party comments on social media pages Journal of Media Law Pub Date : 2022-01-18 David Rolph
ABSTRACT Public Facebook pages are an important way in which traditional media outlets engage their readers and commercialise that engagement. In Fairfax Media Publications Pty Ltd v Voller (2021) 392 ALR 540; [2021] HCA 27, the High Court of Australia has recently held that media outlets are liable as publishers for defamatory third party comments posted on media outlets’ public Facebook pages even
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Privacy, reputation and anonymity until charge: ZXC goes to the Supreme Court Journal of Media Law Pub Date : 2022-01-10 Robert Craig, Gavin Phillipson
ABSTRACT This article seeks to defend the emergent consensus that suspects should be entitled to anonymity until charge and that the tort of misuse of private information (‘MPI') is the appropriate action to protect this right. It systematically addresses Nicole Moreham’s argument, in this journal, that breach of confidence, rather than MPI, should ground such claims, and that the case law to date
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Damages for reputational harm: can privacy actions tread on defamation’s turf? Journal of Media Law Pub Date : 2021-12-12 Jeevan Hariharan
ABSTRACT In four recent cases, the High Court of England and Wales has had to consider whether damages for reputational harm can be recovered in a claim for misuse of private information (‘MOPI’). This is an important issue which sharpens focus on the precise boundaries between privacy and defamation law. And yet it is a question on which the court is currently divided, with different judges coming
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The standard of liability in claims for misuse of private information Journal of Media Law Pub Date : 2022-01-11 John Hartshorne
ABSTRACT This article attempts to identify a standard of liability for use in claims for misuse of private information (MPI). It highlights current uncertainty over this issue following the decision of the Supreme Court in Lloyd v Google LLC. It considers whether the comments of Lord Leggatt in Lloyd are compatible with those made in earlier MPI decisions and argues that the standard applicable remains
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Platform responsibility for online harms: towards a duty of care for online hazards Journal of Media Law Pub Date : 2022-01-06 Luke Price
ABSTRACT Outpaced by the development of the internet, current regulatory approaches do not protect users from online harms transmitted over online platforms like Facebook, Twitter and Reddit. The Draft Online Safety Bill attempts to improve safety online by developing online analogues for responsibility practices, but is limited by a focus on platforms as service providers hosting content. Online safety
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Preventive content blocking and freedom of expression in the European law – conflict or symbiosis? Journal of Media Law Pub Date : 2021-11-30 Ewa Milczarek
ABSTRACT Social networking sites are currently an important element of community, economic and political life. This means that a legal framework that would guarantee freedom of expression on the one hand and protection against defamation on the other must be created. The 2019 CJEU judgement in the Glawischnig-Piesczek (C-18/18) case provides another tool to control the content uploaded to social networking
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Media Freedom Journal of Media Law Pub Date : 2021-12-21 Jan Oster
(2021). Media Freedom. Journal of Media Law: Vol. 13, No. 2, pp. 276-278.
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A theory of media freedom Journal of Media Law Pub Date : 2021-11-11 Damian Tambini
ABSTRACT This article examines the notion of media freedom and the development of two cultures of media freedom. The negative rights approach which is more prevalent in US law is increasingly separated from the more positive rights approach of international human rights and the ECHR. The article outlines the elements of a conditional, institutional approach to media freedom that combines both positive
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Remote trial and error: how COVID-19 changed public access to court proceedings Journal of Media Law Pub Date : 2021-10-04 Judith Townend, Paul Magrath
ABSTRACT Restrictions imposed during the COVID-19 pandemic in England and Wales accelerated the use of digital technology for remote hearings. Inevitably, a period of trial and error followed, with a hybrid and emergency set of rules for media and public access to hearings. This short article outlines some of the main changes to the conduct of court hearings in 2020–21, and the impact on open justice
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The Australian News Media Bargaining Code: lessons for the UK, EU and beyond Journal of Media Law Pub Date : 2021-08-12
ABSTRACT In February 2021, following sustained brinkmanship from Google and Facebook, Australia passed into law its world-first 'News Media Bargaining Code' (Code), which seeks to address the bargaining imbalance between digital platforms and news media. Already, some have judged the Code to be a success, with other countries now considering implementing similar policy responses. In this analysis article
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The impact of the image on personal life: is current law out of focus? Journal of Media Law Pub Date : 2021-05-27 Holly Hancock
ABSTRACT Drawing upon empirical research carried out by the author, this paper demonstrates that the current law in England and Wales on privacy fails to provide appropriate recourse for a person who feels aggrieved at their photograph being taken and shared, particularly where this evokes emotions of embarrassment or humiliation. Whilst some improvements to the current law are discussed to improve
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Injunctions and public figures: the changing value in injunctions for privacy protection Journal of Media Law Pub Date : 2021-03-04 Gemma Horton
ABSTRACT Injunctions are a contentious issue between the judiciary and the press. What the press wishes to publish has sometimes been restricted by the judiciary through the issuing of injunctions. Nonetheless, there have been instances in which injunctions have not been respected. First, members of the House of Commons and the House of Lords have used parliamentary privilege to name individuals. The
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The ‘right to be forgotten’ beyond the EU: an analysis of wider G20 regulatory action and potential next steps Journal of Media Law Pub Date : 2021-02-20 David Erdos
ABSTRACT It has been increasingly asserted that data protection can and should enable individuals to exert some control at least ex post over online data dissemination. Notwithstanding contrary suggestions, therefore, the ‘right to be forgotten’ is not solely an EU phenomenon. Post-2014 the majority of the eight national Data Protection Authorities (DPAs) s operating in non-EU G20 jurisdictions with
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From journalistic ethics to fact-checking practices: defining the standards of content governance in the fight against disinformation Journal of Media Law Pub Date : 2021-01-22 Paolo Cavaliere
ABSTRACT This article claims that the practices undertaken by digital platforms to counter disinformation, under the EU Action Plan against Disinformation and the Code of Practice, mark a shift in the governance of news media content. While professional journalism standards have been used for long, both within and outside the industry, to assess the accuracy of news content and adjudicate on media
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The journalism exception in UK data protection law Journal of Media Law Pub Date : 2020-11-10 Benjamin Wong
ABSTRACT This article addresses the application of the journalism exception in UK data protection law. A number of uncertainties arise out of the case law of the CJEU and UK courts, as well as from the changes made to the journalism exception in the new data protection regime under the GDPR and DPA 2018. Three areas within the journalism exception will be discussed: the meaning of ‘journalistic purposes’
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Too much drama defining film in UK copyright law Journal of Media Law Pub Date : 2020-10-20 C. Paul Sellors
ABSTRACT In Norowzian v Arks Ltd. (No.2) the Court of Appeal determined that the Copyright, Designs and Patents Act 1988 protects films as dramatic works. What, conceptually and in practice, this means is not clear. This article examines and compares the history of film with the definitions of film in the Berne Convention and UK copyright laws to argue that practical and legal definitions of film were
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The post-editorial control era: how EU media law matches platforms’ organisational control with cooperative responsibility Journal of Media Law Pub Date : 2020-07-24 M. Z. van Drunen
ABSTRACT This paper argues the AVMSD attaches cooperative responsibility to platforms’ organisational control. Firstly, it explores how the new concept of organisational control differs from the editorial control that has traditionally been central to media law, in particular concerning the greater involvement of other stakeholders active on platforms. Secondly, it analyses the measures the AVMSD requires
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Positive free speech. Rationales, methods and implications, hart Journal of Media Law Pub Date : 2020-07-21 Jan Oster
(2020). Positive free speech. Rationales, methods and implications, hart. Journal of Media Law: Vol. 12, No. 1, pp. 129-131.
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Police investigations, privacy and the Marcel principle in breach of confidence Journal of Media Law Pub Date : 2020-06-30 N. A. Moreham
(2020). Police investigations, privacy and the Marcel principle in breach of confidence. Journal of Media Law: Vol. 12, No. 1, pp. 1-12.
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Against strike-outs for disproportionality Journal of Media Law Pub Date : 2020-06-22 Harry Stratton
ABSTRACT This article argues against the court striking out defamation claims on the basis that they are ‘disproportionate’, that is, they cost more to litigate than they raise in damages. We begin by setting out the so-called problem of disproportionality. Next, we show that the court’s current solution of striking out the claimant’s claim should be rejected in defamation cases. The value of the claim
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Gender portrayals in advertising: stereotypes, inclusive marketing and regulation Journal of Media Law Pub Date : 2020-06-18 Alexandros Antoniou, Dimitris Akrivos
ABSTRACT This article evaluates regulatory responses to stereotypical gender portrayals in advertising in the UK before and after the 2019 changes in the Advertising Standards Authority's (ASA) harm and offensiveness framework. It systematises for the first time the ASA's rulings in this territory and brings a new perspective in its modern practice by examining it within Deaux and Lewis’ theoretical
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More serious harm than good? An empirical observation and analysis of the effects of the serious harm requirement in section 1(1) of the Defamation Act 2013 Journal of Media Law Pub Date : 2020-06-11 Charlie Sewell
ABSTRACT This article empirically analyses the judicial construction of section 1(1) of the Defamation Act 2013 within the first five years of the serious reputational harm threshold coming into operation. The relevant judgments considering serious harm have been carefully examined and dissected with a qualitative analysis approach, in which prominent themes and factors discussed in judicial interpretations
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Terrorism, the internet, and the threat to freedom of expression: the regulation of digital intermediaries in Europe and the United States Journal of Media Law Pub Date : 2020-05-18 Eliza Bechtold
ABSTRACT This article examines questions relating to the appropriate role of digital intermediaries in regulating online terrorist-related content and the extent to which proponents of human rights should be concerned with the free speech implications of intermediary liability, through a comparative analysis of recent developments in Europe and the United States. While Europe is contemplating introducing
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The Internet, warts and all. Free speech, privacy and truth Journal of Media Law Pub Date : 2019-07-03 András Koltay
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