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Defamation and the misuse of private information: a comparative analysis

Gale, S. E. ORCID: 0000-0001-8472-381X (2018). Defamation and the misuse of private information: a comparative analysis. Tort Law Review, 26, pp. 38-54.


This article considers the interrelationship between defamation and misuse of private information actions and whether the same set of facts might give rise to parallel actions. The starting point for the analysis is that privacy actions are tortious rather than equitable which removes a fundamental difference between the two. In comparing the two actions, the author analyses whether corporations can rely on ECHR Art 8 in privacy cases which has proved controversial. The application of ECHR Art 10 to natural and legal persons is however more straightforward in both cases. Central to the analysis in this article is how the Art 8 and 10 balance is struck, and the role played by public interest in this assessment. The Strasbourg decision in Axel Springer is crucial in this regard as it applies the same set of criteria to both actions. Once all these issues have been considered, then the availability of remedies and defences will be analysed and compared. The author will conclude by arguing that both torts protect different aspects of reputation and they should be seen as separate but overlapping. Recent developments are however bringing them closer together.

Publication Type: Article
Additional Information: This article was first published by Thomson Reuters in the Tort Law Review and should be cited as Gale, S. E., Defamation and the misuse of private information: a comparative analysis (2018) 26, The Tort Law Review, p38. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at The official PDF version of this article can also be purchased separately from Thomson Reuters. This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act (Australia) 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039.
Subjects: K Law
Departments: The City Law School > Academic Programmes
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