Defamation, privacy & the ‘chill:’ A socio-­‐legal study of the relationship between media law and journalistic practice in England and Wales, 2008-­‐13

Townend, J. (2014). Defamation, privacy & the ‘chill:’ A socio-­‐legal study of the relationship between media law and journalistic practice in England and Wales, 2008-­‐13. (Unpublished Doctoral thesis, City, University of London)

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Abstract

A popular metaphor used by judges and journalists, the ‘chilling effect’ is used to describe the undesirable deterrence of legitimate free expression, although it is widely and loosely interpreted and rarely interrogated through methodical empirical research. This research examines the perceived chilling effect on freedom of expression in relation to defamation and privacy law and digital journalistic practice in England and Wales, over a five year period (2008--‐13). It examines media law in practice through interviews with legal specialists in defamation and privacy, close monitoring of online content, examination of court and policy documents, and surveys among journalists and online writers, and considers how decisions to publish or abandon stories are made in the contemporary networked news environment.

The thesis finds that lawyers play an under--‐recognised but pivotal social role in the editorial gatekeeping process, enabling as well as restricting publication. Their absence in ill--‐resourced environments has a paradoxically constraining and liberating effect: a lack of legal advice and knowledge may lead to unnecessary censorship of particular stories, but at the same time small--‐scale operations without legal support and training may be less reactive to potential libel and privacy risks. Despite a popular perception of runaway privacy law, the findings indicate that libel was still a predominant concern for research participants and generated more threats and claims.

The impact of defamation and privacy law on journalism, which is implied by the chilling effect metaphor, cannot be understood in isolation and a socio--‐legal approach based on empirical evidence is required to more fully expose the two--‐way interaction between law and journalism. Editorial decisions are subject to a complex web of competing factors; the collective or individual avoidance of stories can only be explained by looking at legal influences in their social context. In this way, hyperlocal bloggers may steer clear of particular topics for fear of social implications in local communities and national journalists can neglect stories as a result of organisational commercial pressures, or because such stories would damage their access to sources.

The chilling effect descriptor is generally used to help direct policy and decisions that enhance freedom of expression in the public interest but debate is severely hampered by the lack of systematic research and data collection, as this thesis will show. Given the social complexity and ambiguity around perceived chilling effects, the thesis argues that this exercise would be informed by more detailed monitoring and analysis of specific contributory factors, such as individuals’ access to legal resources, legal knowledge and experience of direct or indirect threats of legal action. A more precise understanding of these elements in their wider social context would help the design of proportionate legal dispute mechanisms and the development of public legal education initiatives.

Item Type: Thesis (Doctoral)
Subjects: K Law > KD England and Wales
P Language and Literature
Divisions: School of Arts > Department of Journalism
URI: http://openaccess.city.ac.uk/id/eprint/15981

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