The Atlantic Divide on Privacy and Speech

When does a right to privacy become a right of censorship? Conversely when does freedom of speech become a carte blanche to violate the dignity and autonomy of others? Discussions of privacy throughout the world frequently boil down to these questions. Despite the parallel relationships between privacy and speech in the United Kingdom and America, and despite their shared legal heritage, the two legal systems have struck the balance in radically different ways. In the United States, decisions balancing privacy and the First Amendment have invariably favoured the free speech interest, at least where a press defendant published lawfully-obtained “newsworthy” content. Thus, the publication of names of rape victims or the transcripts of illegally intercepted phone conversations have been protected against privacy claims as “matters of public concern”. By contrast, numerous English cases under the Human Rights Act have protected privacy interests against press disclosure even when the facts alleged constituted front-page news.

Our purpose in this paper is to make some sense of this divergence. How could two similar legal systems apply rules sharing a common origin and reach such different results? Our methodology is explanatory and comparative. We conclude that the divergence is a function of at least two factors. First, the cultural power of the First Amendment in the United States as it has emerged from defamation law has meant that American judges have been particularly reluctant to trust themselves in ruling in ways which might infringe on freedom of speech. This reluctance is especially pronounced when the press is before the court as a defendant. By contrast, English judges actively engage in balancing the two rights under the Human Rights Act 1998 and the European Convention on Human Rights. Ironically enough, the English approach is much truer to the method Warren and Brandeis suggested 125 years ago as the best way to manage this tension. 

We develop our argument in three parts. First, we show how the American position is a function of political commitments made initially in the context of defamation cases involving issues of racial equality in the 1960s. Second, we show how the position in English law is a product of UK involvement with European Human Rights Law. Third, we examine these differences through a series of case studies mapping out how each jurisdiction deals with the publication of stories involving (i) government officials; (ii) celebrities; (iii) private individuals; and (iv) video footage and photographs. We conclude by offering some options by which we could transcend the divide, and we argue that bridging the divide is essential as international conversations about privacy in a wide variety of contexts take on an increasing critical political and economic importance.