“Margin of appreciation” refers to the power of a Contracting State in assessing the factual circumstances, and in applying the provisions envisaged in international human rights instruments. Margin of appreciation is based on the notion that each society is entitled to certain latitude in balancing individual rights and national interests, as well as in resolving conflicts that emerge as a result of diverse moral convictions. In this regard, the doctrine is analogous to the concept of judicial discretion, where a judge, in line with certain constraints prescribed by legislation, precedent or custom, could decide a case within a range of possible solutions. The role of discretion is indispensable not only for bridging the gap between the law and changing realities of dynamic social organisms, but also for answering the particular questions of a given case in the absence of overall enacted or case law. In other words, judges are entitled to exercise discretion to make fair decisions in a specific case, without being locked into a formula that might not be applicable to every scenario.

The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases

In the European Union, courts have been expanding the enforcement of intellectual property rights by employing injunctions to compel intermediaries to provide assistance, despite no allegation of wrongdoing against these parties. These prospective injunctions, designed to prevent future harm, thus hold parties accountable where no liability exists. Effectively a new type of regulatory tool, these injunctions are distinct from the conventional secondary liability in tort. At present, they can be observed in orders to compel website blocking, content filtering, or disconnection, but going forward, their use is potentially unlimited. This book outlines the paradigmatic shift this entails for the future of the Internet and analyzes the associated legal and economic opportunities and problems.

Injunctions Against Intermediaries in the European Union: Accountable But Not Liable?

An injunction is usually understood as an order requiring the person to whom it is directed to perform a particular act or to refrain from carrying out a particular act. This conventional definition of injunction addresses a person who acts against the law – an infringer – and should be stopped from doing so. Such a person acts in a way that the rights of other people prohibit. Seeking an injunction is thus nothing but the request of a right holder to an authority (court) for the individual compliance of a particular person with the abstract letter of the law. Injunctions against intermediaries, based on Art. 8(3) of the InfoSoc Directive and Art. 11(III) of the Enforcement Directive , however, do not target such persons. They address by-standers who (also) comply with the law. The basis for this kind of injunction is thus not an act of disrespect towards the rights of others, but the mere existence of circumstances giving hope to right holders, that if they are assisted by such a person, they will be better off. Put differently, such injunctions want to achieve better enforcement by seeking a help of intermediaries who can do more, but do not have to, as they did all the law required from them in order to avoid liability in tort.This paper thus, as its primary goal, examines a two tier model of regulating intermediaries. A situation where intermediaries do not owe any duty of care under tort law, but are still obliged by injunctions (accountable) to provide assistance. It undertakes a thorough law and economics analysis of Intermediary liability and conceptualizes the role of injunctions against non-infringing intermediaries. The analysis is structured as follows. In the first step, an economic analysis of tort law, injunctions and market transactions is used to understand functioning of the different liability regimes, such as negligence rule and strict liability (see Part 2 and 3). In the second step, the framework is applied to Internet intermediaries and the optimal legal regulation is suggested (see Part 4). In the third step, the findings are summarizes into policy lessons (see Part 5) pertinent to two currently pending debates: should the policy makers (1) replace notice-and-take down policy by the stay-down policy and (2) should they export, reform or entirely repeal the European policy of injunctions against non-infringing intermediaries based on Art. 8(3) of the InfoSoc Directive and Art. 11(III) of the Enforcement Directive.

Accountable, not liable: Injunctions against intermediaries

Two recent court decisions—one in England, the other in New York—have denied bloggers a right which many of them regard as an essential aspect of their freedom: a right to anonymity. The anonymity claims were made in very different circumstances, but both raise the fundamental question how far bloggers are, or should be, entitled to communicate their views without disclosing their identity. In The Author of Blog v Times Newspapers Ltd,1 Eady J rejected the claim of the author of a blog known as ‘Night Jack’ to an interim injunction to stop Times Newspapers from revealing his identity. The blog, which had been awarded the Orwell Prize for citizen journalism in April 2009, discussed the claimant’s day-to-day work as a police officer and expressed his views on a number of social and political issues concerning police work. In the judge’s view, the information about the blogger’s identity was not to be treated as private, for ‘blogging is essentially a public rather than a private activity’.2 But even if it could be regarded as private, the public had a right to know who was disclosing the details of police work and often expressing strong criticism of police strategies.3 In the New York case,4 the question was whether Google, Inc should be directed to identity the author of allegedly defamatory statements about the petitioner, a well-known professional model, on blogs posted on websites under its control. The judge, Joan A [2009] 2 Journal of Media Law 141–147

Bad News for Bloggers

In recent years, many states have reformed laws,or are considering the reform of laws, that govern whether journalists should be compelled to reveal the names of sources who wish to remain ‘anonymous’ (‘confidential sources’). Such reforms have often come about as a result of journalists being sanctioned for non-disclosure under existing laws, or from a general acceptance that existing laws gave inadequate protection to journalists. In such debates, the media lobby has tended to request that they are given an absolute privilege against the forced disclosure of their confidential sources, and currently absolute protection is recognised in around 20 countries. This article argues against absolute source protection laws. It does so by exploring the three main sets of arguments which are used to support protection of confidential sources: those based upon theories of promises and confidentiality; those justified on grounds of the efficiency of newsgathering or other professional related arguments; and those based upon constitutional arguments such as that the press has special privileges as a result of its watchdog role, because it is the Fourth Estate of government, or because of the importance of free speech. None of these arguments is robust enough to support absolute protection, and the position of absolute privilege advocates is further undermined by the variety of situations in which journalists seek to protect their confidential sources. Such sources have a wide range of motivations for disclosing the information they give to journalists, some of which are altruistic, such as the whistleblower wishing to reveal illegal practices. Others are clearly malevolent, hoping to besmirch the name of another, or to criminally exploit false information they reveal. Journalists protect confidential sources who are criminals, and refuse to reveal them even when it could aid a criminal defendant. It is clear that in a number of these situations there are public interests or private rights adversely affected by the disclosure of information by a confidential source, or the refusal of a journalist to reveal the name of a source, which would not be protected if journalists had an absolute right to protect their confidential sources. Whilst being opposed to absolute source protection, this writer accepts that the protection of confidential sources may have an important value; in the concluding section of the article, a number of different ways in which protection of confidential sources can be balanced against competing interests and values are explored.

Theoretical underpinnings of the protection of journalists' confidential sources

In many common law liberal democracies today, news gatherers are resisting efforts to use the powers of the courts to compel them to identify their confidential sources. Often the struggles are epic. Often the public interest in effective news gathering fuelling the vitality of a modern liberal democracy is insufficiently recognised. The article uses recent cases to spotlight the shortfalls in the approach and legacy of the common law in dealing with news gatherer/confidential source relationships. Post Human Rights Act English decisions, especially that of Tugendhat J in Ackroyd, combining European style commitment to the public interest in vigorous newsgathering with common law style analysis of evidence, point the way to a more effective approach. US and Hong Kong cases remind news gatherers of their public interest responsibilities.

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Janice Brabyn

Papers

Protection Against Judicially Compelled Disclosure of the Identity of News Gatherers' Confidential Sources in Common Law Jurisdictions