On intermediaries, at the Information Law and Policy Centre – 5 October 2017

Cross-posted from https://infolawcentre.blogs.sas.ac.uk/2017/10/10/internet-intermediaries-from-defamation-to-directive-to-data-protection/

Taking stock of recent developments concerning the liability and duties associated with being an Internet intermediary (especially the provision of hosting and social media services) was the theme of a recent event at the Information Law and Policy Centre. In my presentation (click to download slides), starting from about 20 years ago, I reviewed the early statutory interventions, including the broad protection against liability contained in US law (and the narrower shield in respect of intellectual property!), and the conditional provisions adopted by the European Union in Directive 2000/31/EC (E-Commerce Directive), alongside developments in specific areas, such as defamation. The most recent 10 years, though, have seen a trend towards specific solutions for one area of law or another (what I called ‘fragmentation’ in 2013), as well as a growing body of caselaw on liability, injunctions, and the like (both from the Court of Justice of the EU and the domestic courts).

So in 2017, what do we see? I argued that if there ever were a consensus on what intermediaries should or should not be expected to do, it is certainly no longer the case. From the new provisions of the Digital Economy Act 2017 creating a statutory requirement for ISPs to block access to websites not compliant with the new UK rules on age verification for sexually explicit material, to the proposed changes to the Audiovisual Media Services Directive that would create new requirements for video sharing platforms, to the Law Commission’s recommendations on contempt of court and temporary removal of material in order to ensure fair proceedings, new requirements or at least the idea of tweaking the obligations are popping up here and there. This is also seen through the frequent exhortations to service providers, especially social media platforms, to do more about harassment, ‘terrorist’ material, and the like. As the Home Secretary put it in her speech to the Conservative party conference last week, she calls on internet companies ‘to bring forward technology solutions to rid […] platforms of this vile terrorist material that plays such a key role in radicalisation. Act now. Honour your moral obligations.’ Meanwhile, the European Commission’s latest intervention, a Communication on ‘tackling illegal content online’ promotes a ‘more aligned approach [to removing illegal content, which] would make the fight against illegal content more effective’ and ‘reduce the cost of compliance’ – yet at this stage lacks clarity on how to handle divergence in legality between member states, the interaction with liability issues, and human rights issues (including the emerging jurisprudence of the ECtHR on the topic).

The Economist summarised developments in 2017 as being a ‘global techlash’, while Warby J’s perceptive speech on media law pointed to the increased complexity of media law, ‘mainly, though not entirely’ as a result of legislative change. I called for a broader review of intermediary law in the UK (perhaps led by the Law Commissions in Scotland and England and Wales and the appropriate authorities in Northern Ireland), which would take a horizontal approach (i.e. encompassing multiple causes of action), address questions of power (though heeding Orla Lynskey’s caution that power in this context is not soley market power), considers liability, duties, and knock-on effects together (rather than the artificial separation of maintaining immunity while adding new burdens), and responds to Brexit.

Prof. Lorna Woods summarised the growing concerns about blanket models, emphasising a shift towards ‘procedural responsibility’ in systems such as the DEA. She highlighted the uncertainty about the status of the ECD’s no general obligation to monitor clause (article 15), which was never transposed into a specific provision in the UK, and the potential interaction between the proposed AVMSD amendments and UK-specific actions. James Michael framed the issue as influenced by a struggle between legal approaches and the behaviour of technological companies, and wondered whether an international approach (perhaps in the spirit of the OECD’s approach to data protection) would be more fruitful. Further discussion with an engaged audience included the interaction between the status of data controller and the provisions on intermediaries, the role of industry self-regulation, emerging questions of international trade law and harmonisation, and developments elsewhere e.g. injunctions against search engines in Canada.


Peng t(h)ing called disruption…

Discourse and rhetoric around the ‘sharing economy’ is something that fascinates me, and I am hoping to do a larger project on the topic (subject to time, funding and the usual caveats). But the 2017 release of two songs ostensibly ‘about’ new ways of travelling (Tom Zanetti’s ‘Uber’ and Not3s’ ‘Addison Lee’), and the brief shout-out to Airbnb in the best-selling ‘Feels’ (Calvin Harris with Pharrell Williams, Katy Perry & Big Sean) prompted me to say a few words about popular music and the Internet at this year’s Gikii workshop. My full playlist is available on Spotify, and the text that follows is an attempt to summarise some of my points. (Links in this post are to YouTube, where available).

It’s not unusual for communications technology to be mentioned in lyrics. Glenn Miller’s ‘Pennsylvania 6-5000‘ used the brief and catchy telephone number of the hotel in which his band performed as a refrain – indeed, the only spoken words in the whole piece. Indeed, 20th-century popular music has a whole plethora of songs about or referring to telephones – be that Blondie’s ‘Hanging on the Telephone‘ (1978) or ELO’s ‘Telephone Line‘ (1977) (which I borrowed for an academic article, once) – and into the 21st century, Lady Gaga’s ‘Telephone‘ (2009) also makes significant use of (somewhat retro) telephone imagery in its much-viewed video, while Drake’s >1bn viewed ‘Hotline Bling‘ (2016) makes specific and repeated reference to something that Glenn Miller would not have imagined – the now-ubiquitous cellphone. (As pointed out in the discussion and in subsequent emails, the metaphorical potential of the telegraph and telephone is strong – ranging from Cardinal Wiseman’s Victorian hymn ‘Full in the panting heart of Rome‘ (‘For, like the sparks of unseen fire / That speak along the magic wire / From home to home, from heart to heart / The words of countless children dart / God bless our Pope, the great, the good’ – a fifth verse added in the 1860s to a text first published in 1850) to Meri Wilson’s ‘Telephone Man‘ (1977) (‘Hey, baby, I’m your telephone man / You just show me where you want it and I’ll put it where I can … / I can put it in the bedroom, I can put it in the hall / You can have it with a buzz, you can have it with a ring / And if you really want it you can have a ding-a-ling’)

Two themes quickly emerge. One, as seen very clearly in the case of Drake, is the association between communications and sex / relationships / love. We will return to this. A second is how to approach technology and technological change. Kraftwerk are a worthwhile case study here because of the joining of technology as a subject matter with the use of emerging technologies in the production of the music itself. Sometimes the tone is celebratory (e.g. ‘Home Computer‘), and yes, again, related to relationships (‘Computer Love‘). Famously, later releases and performances of ‘Radioactivity‘ contain pointed critiques of nuclear power and highlight scandals and disaster in a way that the original did not.

A relatively early specific reference to the Internet is found in Mousse T vs Hot ‘n’ Juicy’s ‘Horny‘ (1998). Not in the catchy chorus, but in the narrative verse, and with the Internet positioned as one of a number of means of communication (‘I tried to call you but I can’t find the telephone / I sent a message through the Internet but it rejected / I wrote a letter and I sent it with the post / But post just takes too long / So I’ve got to sing this song…). As error messages go, though, it must take second place to Bran Van 3000’s ‘More Shopping‘ (2001), where the guest artist Momus talks about a message ‘sent by Internet / by obscure protocols / to its recipient / the delicious Miss G’.

Unsurprisingly, the subsequent shift towards social media is also found in music. Here, the temptation is to raise an eyebrow, to some extent. See in particular The Chainsmokers’ early release ‘#SELFIE‘ (2014), where the lyrics (backed up by the video) portray the vapidness and self-absorption of the selfie-taker in the club; the text is spoken, with each section concluding with the timeless peroration ‘let me take a selfie’ or a variant thereof – leading into what Switched On Pop excellently call a ‘pop drop‘ (instrumental hands in the air chorus). Or, in the aspirant genre of English folk about 21st century life, the Lancashire Hotpots singing about Myspace on their first album (which also takes on eBay, Shopmobility Scooters and emo in other tracks): ‘I got myself a Myspace page / It really was the best / I logged on to it t’other day / To see a friend request / It was from a lass from Lancashire / Her page had loads of hits / I looked at the pictures on her profile / She had absolutely massive / A-toora-loora-loo / Toora-loora-lay …’. (‘I Met A Girl On Myspace‘ (2007)). Or, in Eurovision world, serial entrant and pride of San Marino Valentina Moretta, whose 2012 entry ‘Facebook‘ was initially disqualified for its commercial reference, and replaced by the very similar ‘Uh Oh (The Social Network Song)‘ with the offending references removed, but the lyrics preserved mostly intact, e.g. ‘Do you wanna be more than just a friend / Do you wanna play cybersex again / If you want to come to my house / Click me with your mouse’. (It didn’t get out of the semi-final).

An unusually successful engagement with Internet (and particular gamer culture) comes in the Swedish-language releases of Jonas Altberg (aka Basshunter). His first major Swedish hit (‘Boten Anna‘ (2006), with chart performance in some neighbouring states, tells the tale of a bot who keep order in a chat channel, and turns out to be a real person (though the narrator is nonetheless happy to continue to think of her as a bot). It was followed by the splendid ‘Vi sitter i Ventrilo och spelar DotA‘ (2006) – we sit in Ventrilo (chat application) and play DotA (Warcraft battle arena Defence of the Ancients). The English-language releases of these tracks, though (‘Now You’re Gone‘ and ‘All I Ever Wanted‘, both in the heights of the UK charts in 2008) pursue much more conventional themes, with no remaining references to gaming or the Internet, e.g. ‘All I ever wanted / was to see you smiling / All I ever wanted / was to make you mine’ and ‘Now you’re gone / I realized my love for you was strong / And I miss you here now you’re gone’).

Turning now to the sharing economy, I note that the strength of the ‘share’ metaphor has been acknowledge by a number of scholars of these emerging platforms and business models. Nicholas John, for instance (in The Age of Sharing), traces the links between filesharing, social media sharing and the sharing economy, while also positioning the business strategy of key players in an even broader context of altruism, Care Bears and more. I am fond of pointing to the remarkable intervention of former European Commissioner Nellie Kroes, who condemned the regulatory approach of the city of Brussels as not wanting to be modern – to me, this is less Share Bear and more the infamous pitch to get on board in ‘The Monorail Song‘ (The Simpsons, episode 71, ‘Marge vs the Monorail’).

In that context, it’s so interesting how the songs I mentioned in the first paragraph go down a somewhat different path. In Zanetti’s ‘Uber‘ (2017), the emphasis is on partying and of course sex, and the life of luxury: ‘she don’t wanna ride round in a black cab / she wanna get picked up in an Uber’ (followed by, yes, a version of a pop drop). This highlighting of a particular type of good life of a piece with Zanetti’s breakthrough single ‘You Want Me‘ (2016), where the video features a rotating cast of Instagram models, reality TV stars and others; Zanetti’s own social media profile is a key part of his brand. His entrepreneurial spirit has caused some to liken him to Pitbull; Zanetti is slightly sceptical about the link. Pitbull of course knows a thing or two about technology and the party life, famously opening ‘Give Me Everything‘ (2011) with ‘Me not working hard / Yeah right, picture that with a Kodak / Better yet, go to Times Square / Take a picture of me with a Kodak’ (also solving the dilemma of how one finds a rhyme for Kodak).  The sharing economy, photographic, and online themes then all come together in Calvin Harris’ ‘Feels‘ (2017); in Big Sean’s section, ‘fly in first class through the air / Airbnb / I’m the best you had, you just be comparing me to me / Imma ‘at’ this at you / if I put you on my phone / and upload it / it’ll get maximum views’. The overall impression (whether cringeworthy or zeitgeisty, I’ll leave to you to determine) is of a very 21st century version of being rich and famous, that encompasses both housesharing and photosharing.

The most rewarding exigesis, however, is of Not3s’ ‘Addison Lee‘ (2017), not least because it appears in its original form and as a remix. Both versions make specific and repeated reference to the London private hire company Addison Lee (a critic of Transport for London’s allegedly relaxed approach to new entrants, as it happens – and yes, I’m very aware that Uber as deployed in the UK does not fit the true definition of sharing economy as it does in some other markets with different private hire licensing structures). Anyway, you will not be surprised to note that the theme is sexual (‘Cause there’s no time to waste / I got my yard for free / Peng ting called Maddison / I tell her come and jump in my Addison Lee / I just called a driver / I slapped on a promo code / To you get to my yard for a fiver / Only for a fiver / Would you come and spend the night with me / Lay your head tonight with me’).  As has long been the case, transport facilitates or speeds up what the subject wants to do. But the juxtaposition of Addison Lee with Uber is fascinating. First of all, there’s indirect praise for Uber (‘I could have got an Uber / it might have been there sooner / It might have been way cheaper / but the price ain’t too much’). Then, there’s a brief reference to getting ‘blocked off my Uber’. We see more in the remix, where additional verses are contributed by collaborators. The key is Geko’s section (noting that Geko is Manchester-based and therefore outside Addison Lee’s area of operation): ‘I told her come jump in my Uber / I don’t live in the capital city / The fare was times 2.0 / So you better come and gimme, gimme / Better make it worth that moolah, girl / Cause a man ain’t rich’. Here, Uber is potentially the expensive option (damn that surge pricing), though that’s quickly reframed as a consideration of whether it’s worth it for, yes, sex. Though, the usefulness of references to different (and sometimes London-specific) forms of transport also sits very well with urban music genres (see also, as pointed out to me, Devs’ freestyle viral hit ‘Who What Where‘ – ‘(We go anywhere / I might Uber cabbie directly there’)).

And as I press publish on this post, Uber is, according to Transport for London, not fit and proper. Interesting.

Thanks to Lilian Edwards, Reuben Binns, Miranda Mowbray, and NíChaoimh Dewdney for contributing songs / links.

Now out – Medium Law – the book!

My book Medium Law (Routledge) has just been published. It’s available in hardback (from the publisher and from various bookshops) and for Kindle and as a Google Play ebook, and an extract/summary is available here.

Here’s the mission statement, more or less (taken from chapter one):

I will set out the case for continuing to acknowledge within regulation, and in some cases use as the basis for special regulation, the medium. This is not to say that every silo ought to be defended on equal terms. There are plenty of examples where the lines drawn for legal purposes make no sense, and may have never made sense in the first place. We will encounter Morris dancers and lap dancers, space invaders and streaming video, and surprisingly detailed consideration (by regulators) of everything from ringtone subscriptions to titles and credits in audiovisual works. But I will propose that the idea of converged, cross-platform, medium-neutral media regulation is unattainable in practice and potentially undesirable in substance.

What I’ve tried to do in the book is identify the role of the medium in media law. Chapter two is about the significance of the medium, historically and in the present day, including an extended discussion of Canadian media scholars Harold Innis and Marshall McLuhan, and examples from outside of conventional media law. Two long chapters, following a similar structure, investigate the medium within the film and game sectors – both affected by digital technologies and by specific forms of regulation. Then, medium-specific chapters consider medium-specific (and broader) approaches to the law, in radio, video-on-demand, premium rate services, and finally ‘entertainment’ (e.g. theatre, live music, circuses, and the like). I do hope people enjoy reading it – it was a long time in the writing for various reasons, but the result is something that, I think, reflects the way I approach my work and the different sorts of literature and ideas that I try to engage with.

Here’s what some other people have to say about it:

The convergence of media law and Internet regulation has caused some to question the need for medium-specific laws: a claim firmly rebutted in this comprehensive review of medium-specific law basing itself on the insight of the ‘Toronto School’ scholars Innis and McLuhan. Mac Síthigh’s excellent monograph provides meticulous case studies in the vagaries of medium law, essential reading for all those interested in the construction of medium-specific regulatory regimes, their evolution and their continued relevance.

(Chris Marsden, Professor, Sussex Law School, University of Sussex, UK)

Medium Law provides a rich and detailed overview of the tensions that exist in some of the less-charted areas of UK media law – from the regulation of online radio and video games, to live relay of opera in the cinema, music apps, and video on demand. Mac Síthigh challenges us to reconsider the role of the medium, alongside the message, in framing our media regulation of the future.

(Rachael Craufurd-Smith, Reader in EC Law, Director of Learning and Teaching, University of Edinburgh, UK)

This timely and highly ambitious book confronts head-on the debate on the development of technology-neutral, future-proof legislation across media platforms. By providing a careful and in-depth analysis of the laws concerning radio, film, TV, games, on-demand services and other entertainment platforms, this insightful book explains why the medium will continue to play a pivotal role in media regulation. Highly recommended.

(Peter K. Yu, Professor of Law and Director, Center for Law and Intellectual Property, Texas A&M University School of Law, USA)

To illustrate his argument, an eclectic mix of areas are drawn upon and some innovative examples explored. This is the beauty of the book. The examples Mac Síthigh chooses are well thought through and apposite, and beautifully delivered. Some of the chapters utilise, in part, previous work that some readers may be aware of, particularly perhaps important earlier interventions relating to computer games and film, but here they are skilfully woven into this broader theoretical frame. These perhaps more traditional or recognisable areas of media law are supplemented by the examination of fields such as licensing law and further utilises forays into areas as diverse as planning and ecclesiastical law, allowing a truly unique and innovative take on media law.

(Guy Osborn and Steve Greenfield, editors of the series Law, Society, and Popular Culture, in which the book appears)

Disliking like

I have a new article in the forthcoming issue of the Journal of British Cinema and Television. JBCTV (Edinburgh University Press) is a journal that I have read and cited for some time, so it’s a particular pleasure to be published in it after all that.

The paper is entitled ‘TV-like’: aesthetics, quality and genre in the regulation of video-on-demand services (link is to pre-print version hosted by Newcastle University; updated link to final version will follow). It explores, in more detail than was possible in the on-demand chapter of Medium Law (chapter 6), the way in which ATVOD and Ofcom interpreted and implemented certain provisions of the Audiovisual Media Services Directive (AVMSD) concerning on-demand services. A big sticking point was working out, as required by the law, whether on-demand services were ‘comparable’ to the form and content of television services. Down the rabbit hole I went, and (with encouragement from my friend and sometime collaborator Keith M. Johnston in particular, and a most enjoyable presentation of a very early draft at an ECREA workshop in beautiful Aarhus), I found myself exploring whether the methods and conclusions of Ofcom could be better informed by other aspects of television studies. This arises because Ofcom needed to work out how to respond to the content of on-demand services, under headings such as titles and credits, the duration of the works, the quality of production, and much more. Of course, while all of this was being finished off, ATVOD’s functions were being folded back into Ofcom, and the European Commission was getting the rewrite of the AVMSD on track, so the article ends up as more of a reflection on an experiment, with an eye to how things might be better handled in future.

Here’s the full abstract, anyway, and hopefully some will find it of interest.

From 2010 to 2015, video-on-demand services in the UK were regulated by the Authority for Television on Demand (ATVOD), under an agreement with the statutory regulator Ofcom and applying the pan-European standards introduced through the 2007 EU Audiovisual Media Services Directive. A key question for the regulators and for service providers was whether any given service fell within the ‘scope’ of the law – that is, which services met the legal definition of an on-demand audiovisual media service. This is a study of how Ofcom exercised its role as the final arbiter of that definition, through a close examination of its 15 decisions in appeals against initial determinations by ATVOD. The use of the legal test for ‘comparability’ with conventional television services, and the regulatory focus on ‘TV-like’ on-demand services, has demonstrated the significance of production and aesthetics as a determinant of regulation. In particular, production decisions regarding titles, credits, and duration, as well as a range of issues of perceived quality (audio, video, voiceover, editing, and the like), have been taken into account. It is contended that Ofcom has relied on focus group research, rather than on wider insights from television studies research, in assessing these factors, and that the underlying Directive may have been flawed in its concepts and definitions.

Rebooting lexferenda.com

I’ve neglected this blog for quite a while now (and it was hardly all that active beforehand), so this is just a note of hello (and welcome back, hopefully) to readers. I’ve also updated some of the static pages at the tabs above (about my research, etc) and regular posts will resume in coming days.

The changeover may have disturbed subscriptions (for those still interested in such things), so if so inclined, please do check your RSS details or subscribe by email through the option in the right sidebar.

(Image: CC-BY https://www.flickr.com/photos/kalleboo/4611613067/)

Ten years!

This is a post made out of notes on the first ten years of this blog (2006-2016). Most of the activity was during that first half. I’m posting it now as part of the site reboot.

Some things of interest…to me, at least:

  • In that first period, the number of visits per year was consistently above 1,000 per month. Since then, it has been a good deal lower – although 2015′ total of 6,705 was the first increase in many years .
  • The most read post remains FOI and Universities from January 2009. But, the overwhelming majority (1500) of hits came on that day (via Ben Goldacre / Bad Science).
  • I joined Twitter myself in 2009. That was probably the beginning of the end of regular blogging.
  • But, many recent visits come via Twitter. (Oh, Google Reader, how you are missed).
  • The most read post in 2015 was an old one – July 2009, on data retention. The search-juice title (Data Retention Ireland – actually a play on the initials of Digital Rights Ireland, discussed in the post) is probably a factor. The other popular posts were newly posted within that period –  Computers and the Coalition – a speech at the launch of the Information Law and Policy Centre), and a note in memory of Greg Lastowka. (Sadly, not the first time I have used the blog to note the early passing of friends and colleague – e.g. Liss Jeffrey, Peter Fitzgerald).
  • In terms of popular outbound links, we see UEA (my employer from 2008-2012) and cearta.ie (who supervised my PhD, 2006-2009) in particular.
  • Update: I hardly posted at all in 2016 itself: just a handful of posts at the beginning of the year, with the old data retention stuff still being popular in terms of hits.

Campbell’s Scoop

Tom Bennett and I, along with the regular editors (Eric Barendt, Rachael Craufurd Smith and Tom Gibbons) have put together a special issue of the Journal of Media Law (volume 7, issue 2) arising out of the workshop we hosted at Newcastle Law School on the Campbell Legacy and broader issues of privacy law in the UK and Commonwealth. The original workshop (discussed here) was a ‘ten years on’ discussion of the decision of the House of Lords in Campbell v MGN [2004] UKHL 22. Papers in the issue come from Nicole Moreham, Jacob Rowbottom, Rebecca Moosavian, Paul Wragg, Eric Descheemaeker, and my co-editor Tom. We also wrote a short editorial, which appears below.

Introduction: The Campbell Legacy (2015) 7 JML 152

The early years of the 21st century have seen a number of significant developments in the law that have impacted upon the media. The impetus for many of these was the enactment of the Human Rights Act 1998 and perhaps the most dramatic was the recognition by the House of Lords in Campbell v Mirror Group Newspapers Ltd of a cause of action for ‘misuse of private information’ (MPI). This case is rightly regarded as seminal. For, in recognising a head of liability apt to protect against the wrongful publication of private information, the English judiciary took a step towards fulfilling Lord Irvine’s pre-HRA prophecy that English judges were ‘pen-poised’ to develop the right to privacy in domestic law.

The decision of the House of Lords in Campbell has been followed by a decade (or so) of cases and discussion on the shape and purpose of privacy law in England and Wales. The judicial recognition of the MPI cause of action has had a significant impact on the media. Moreover, the decision and its subsequent refinement have formed part of a transnational conversation on privacy, reputation, celebrity, information, and speech, with many other legal orders continuing to grapple with common law and statutory approaches to privacy. Courts in Canada and New Zealand have, whilst developing their own privacy torts, given substantial consideration to the Campbell model. Furthermore, the Australian Law Reform Commission recently recommended the adoption of a ‘misuse of private information’ tort, taking its preferred nomenclature directly from Campbell. Clearly, then, Campbell’s legacy – whatever else it may be – courts global attention.

This ‘legacy’ was the subject of a one-day workshop held at Newcastle University on 23 April 2015, convened by the guest editors of this issue. With support from the Journal of Media Law, Schillings, and the Newcastle University Conference Fund, we were joined by speakers and participants from universities and legal practice, spanning England, Wales and Scotland. In addition, we were particularly pleased to welcome Dr. Nicole Moreham from the Victoria University of Wellington (New Zealand), who gave the closing keynote address.

This special issue of the Journal of Media Law brings together a selection of papers first presented at the workshop, and subsequently revised by the authors. The contributors address the Campbell legacy from a range of perspectives including tort law, human rights, and comparative law; they discuss broader themes of power, metaphor, consistency, and technological change.

Nicole Moreham, who has written extensively on post-Campbell developments, focuses her attention on one of the most recent MPI decisions: Gulati v MGN in the High Court. Concentrating on the treatment of ‘intrusion’ in New Zealand and in Canada (Ontario), and the evolution of doctrine in England and Wales, she concludes that the decision in Gulati is a new and welcome extension of privacy law in this jurisdiction.

Like a number of contributors to this issue, Jacob Rowbottom situates Campbell in the long history of English privacy law. Doing so allows him to highlight the interaction between the development of the law on MPI and broader concerns on the power and influence of the mass media. However, with cultural, economic and technological factors in play, the concept of media itself is under strain; Rowbottom asks whether alternative approaches to what was promulgated in Campbell might be more appropriate in certain cases – especially concerning the use of the Internet.

The decision in Campbell is replete with provocative and complex terms such as ‘balance’. Rebecca Moosavian’s concern is with the poorly-understood significance of metaphors within legal discourses. She traces the use of the ‘balance’ metaphor in Campbell and subsequent cases (with particular regard to articles 8 and 10 ECHR), arguing that it promotes acceptance of decisions by alluding to justice and appearing certain and calculable.

Like Moosavian, Paul Wragg focuses on the ‘ultimate balancing exercise’ undertaken at the second stage of Campbell’s methodology. Wragg presents a more sceptical response than Moosavian, however, offering evidence that the courts have failed properly to engage in ‘balancing’ at all. He contends that, on many occasions, courts have adopted a substantially blunter instrument (a ‘zoning’ approach) in their efforts to decide between the interests of claimants and defendants in MPI.

Thomas Bennett’s essay considers one way in which cases subsequent to Campbell have expanded the law more broadly than might have been expected, given the restrictive undertones of the pre-Campbell decision in Wainwright v Home Office. Focusing on the issue of third parties’ interests in MPI cases and the manner in which the common law develops (‘incrementalism’), Bennett finds cause to be critical of Wainwright for what he sees as a short-sighted and unnecessary insistence upon leaving the law to develop in such a piecemeal fashion.

Eric Descheemaeker’s article, like Bennett’s, concerns Campbell‘s place in the field within which MPI is most often thought to sit – tort law. Focusing on the recent case of Gulati (also discussed by Moreham), Descheemaeker brings to the fore the question of where ‘harm’ lies in MPI cases. This, he observes, is an issue of high significance within tort law generally, and the failure of the courts adequately to theorize it in MPI cases leads to conceptual incoherence.

A number of the articles, then, strike a distinctly critical note. Despite its significance, Campbell is readily identified as a doctrine with imperfections. The contributors to this volume offer up their criticisms regarding doctrinal coherence, the protection of various rights, and the quality of judicial decision-making. The initial decision, while not entirely unexpected, left us with an inchoate doctrine that, in the ten years or so since, the courts have begun to develop further. Each of the authors here, in their own way, cautions against complacency. Clearly, the accumulated caselaw and commentary of the post-Campbell decade point to a clearer notion of what privacy law in England and Wales should look like. Some measure of redress for infringements of privacy is here to stay. Nonetheless, both the doctrinal imperfections and the underexplored alternatives from elsewhere should be given greater attention in Campbell’s second decade.