J.K Rowling, Defamation and Privacy Law, and the Chilling of the Media

A common argument made to justify First Amendment restrictions on privacy torts and defamation law is that legal liability will chill the media.  I am generally sympathetic to these arguments, though only to a point.  I think these arguments are often overblown.  An interesting point of comparison is the UK, where there is a much weaker protection of free speech and much stronger defamation law.  Although the UK has not embraced all of the privacy torts recognized in the United States, it has come close, recognizing a robust tort of breach of confidence.  Despite the lack of a First Amendment equivalent, and the stronger legal liability for gossip and libel, the press in the UK seems anything but chilled or cowed.  Consider J.K. Rowling’s recent testimony:

Rowling said a “wholly untrue” Daily Express story, which claimed she had based an unpleasant character on her ex-husband, had meant she had to have a “horrible” conversation with their young daughter to explain that it was not the case.

“This episode caused real emotional hurt,” she said, because her daughter had to cope with other children believing that about her father.

Rowling added: “It portrayed me as a vindictive person who would use a book to vilify anyone against whom I had a grudge.”

Rowling also pointed to a story published in the Sunday Mirror, which claimed her husband had given up his job as a doctor “to be at the beck and call of his obscenely rich wife,” she said.

This was “damaging misinformation” about her husband, who is not a celebrity, she said, because it led colleagues to believe he had abandoned his medical career. The paper subsequently apologized.

Defamatory articles spread like fire and are difficult to contain, she told the inquiry, but she had no “magical answer” to the problem of abuses by the press.

Rowling’s testimony, and that of others, reveals a rabid and fervent media in the UK — in spite of the stronger laws.  This makes me ponder whether the claim that strong privacy and defamation law will chill the media is false — or at least is overblown as I believe.  But another conclusion may be drawn from this — perhaps the law doesn’t do much work at all.  It appears that the media’s behavior is not dramatically affected by the law, and thus the law really fails to shape norms or impact behavior.  I’m not sure I agree with this claim, but it is one that should be pondered.

The situation calls for further thought.  How can it be that the tabloid press is so robust in the UK which appears to have much weaker free speech protections than the US?   I only have guesses, not answers, and this question has always struck me as one worth investigating.


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3 Responses

  1. Rebecca Tushnet says:

    A good place to start: Russell L. Weaver & Geoffrey Bennett, Is the New York Times “Actual Malice” Standard Really Necessary? A Comparative Perspective, 53 La. L. Rev. 1153 (1993), which discusses the question in some detail.

  2. guy herbert says:

    The item is predicated on a false dichotomy. The UK has weaker free speech protections (none, really) than the US, but it ALSO has weak privacy protections. The British press is weaker than the US’s vis-a-vis the state and rich libel litigants. But it is unrestrained in its intrusions into privacy. There is a distinction to be made between defamation and privacy invasions, and the wealthy are inclined to use the powerful weapon of the former and see defamation everywhere, because they have no more power than anyone else in the face of privacy invasion.

    Common law confidentiality is good strong well-established law in commercial and employment relationships. But where there is no pre-existing relationship and/or the party whose confidence is breached has not great wealth promptly to enforce injunctions, it is of little use. Mere privacy it will not protect.

    In the long and expensive litigation over the clandestine Douglas-Zeta Jones wedding pictures, the film stars were eventually victorious because the court found a commercial confidentiality to exist. It is likely that had they not arranged to sell official pictures in advance of the wedding they would have lost.

    In challenging official power or exposing actual wrongdoing the complete account of which cannot be proved in court, the British press is badly chilled. It even stunts foreign coverage, since dictators and oligarchs and their courtiers have plenty of funds to mount libel actions. That might explain the raucous obsession with private lives. It is a safer way to sell papers.

  3. Sarah Butcher says:

    Really interesting point. The media is almost ‘rabid and fervent’ in the UK although I am not sure I would say there are stronger laws – do you mean than the US?

    Much of the issue which you often see in the UK case law is the balancing act the courts try to play with freedom of expression and right to a private life. Their equal status in law makes it a challenge for the courts, unless as you point out there is a situation which now follows one of the existing precedents such as Douglas v Hello.

    The tabloid press is really strong, the sums of money they seem to spend on a story, and the influence they have on the public is quite incomparable with many other countries. Furthermore s.12 Human Rights Act 1998 reinforces the regard the courts must have towards freedom of expression when considering an injunction or similar.

    Both the Leveson inquiry and the Select Committee on Privacy and Injunctions will be interesting to follow.