Abstracts of the Law Section for the Taipei Conference, 26-28 July 2005
Session 1:
CULTURE IN MASS COMMUNICATION LAW:
A COMPARATIVE DISCOURSE ON ANGLO-AMERICAN VS. ASIAN LAW
Moderator: Kyu HO YOUM,
Jonathan Marshall First Amendment Chair
School of Journalism and Communication
University of Oregon (USA)
Culture plays a significant role in mass communication law. Case in point: «Asian values» have often been used in justifying or rationalizing the authoritarian legal regime governing freedom of speech and the press in several Asian countries.
But the relationship between culture and mass communication law varies from subject to subject. Some areas of mass communication law are more likely to factor in culture than others.
Reputational value is a good illustration. «Defamation law would operate differently in a deference society than in a market society,» notes Yale law professor Robert C. Post. «In the latter, reputation is a quintessentially private possession…. The preservation of honor in a deference society, on the other hand, entails more than the protection of merely individual interests.»
Likewise, protection of symbolic expression and obscenity—or lack thereof—is influenced by cultural norms and traditions in varying degrees.
In this light, the key focus of my proposed panel on comparative approach to mass communication law for the IAMCR conference in Taipei will be:
To what extent and in what way does culture define mass communication law in Asian countries in comparison with Anglo-American nations?
Panelists:
PRIVACY,
PAPARAZZI AND THE PRESS:
HONG KONG CONSIDERS ITS LEGAL OPTIONS
Doreen
WEISENHAUS,
Journalism and Media
Studies Centre
The University of Hong Kong
While journalists have long been under public scrutiny for their newsgathering practices, the past 10 to 15 years have seen a dramatic rise in community concern over what many view as an unethical and unrestrained press in an increasingly competitive marketplace. One aspect of media behavior — paparazzi and aggressive reporting into the personal lives of celebrities and other individuals — has intensified the debate over privacy rights and press freedom. The 1997 death of Princess Diana in a car crash that was blamed on paparazzi pushed the privacy debate to center stage worldwide.
In many countries, the public, policy makers and legislators have called for increased regulation, additional laws and/or judicial intervention to rein in what they consider to be excessive privacy intrusion by the media, while the journalism profession has urged more self-regulation. In Hong Kong, where rambunctious media and their «puppy packs» of paparazzi are well known, the government is considering controversial proposals that, if approved, would give Hong Kong stricter privacy laws than in many of its Asian counterparts and in any other common law jurisdiction, including the United Kingdom, the United States, Australia, Canada and New Zealand.
One proposal would establish a statutory press commission to oversee all print media, which would be bound by a press privacy code. Any publication deemed by the commission to have violated the code would be required to publish corrections and other findings or face court sanctions. The second proposal would create a right to privacy by providing new civil torts for media intrusion and publication of private facts.
This paper will examine Hong Kong’s proposals to assess their potential impact on both the media and individual privacy rights and compare to attempts by other countries to address the privacy issue.
AN IMPACT OF THE U.S. ON
KOREAN MEDIA LAW EDUCATION
Jae-Jin LEE,
Dept. of J/MC, Hanyang University (Korea)
Interest in media law education in Korea has grown considerably in the last few years. This has something to do with the fact that libel suits against the media have drastically increased in the past two decades. In regards to the numerical increase in libel suits, many legal and journalism scholars argue that media law education should be intensified with the curricula restructured. As a matter of fact, it was in the early 1960s that the media law education in Korean universities had begun. In other words, media law education was taught as a core curriculum in the departments of journalism in Korean universities for the last 40 years. Media law education was also considered very significant among Korean journalists. Nevertheless, media law education (including media ethics education) in Korea was relatively underdeveloped compared to other area of journalism and was not systematically taught in academy. Also, it was said that the media law education was heavily influenced by American media law education system. The major purpose of my paper is to review how the media law education in academy has evolved for the last 50 years and to analyze what kind of problematic issues were generated by the influences of the U.S. media law education. In order to carry out the purpose, this paper will closely examine curriculum of the universities that furnish with media-law-related classes and people who teach those classes.
TRANSFORMATION OF KOREAN LAW AND
SOCIETY:
A CASE OF PRESS FREEDOM
Kyu HO YOUM,
School of Journalism and Communication
University of Oregon (USA)
The South Korean press typifies an unending evolution from an authoritarian system to an increasingly libertarian entity in a democratic body politic. The formative process of media law in Korea illustrates the Koreans' ongoing search for a balancing paradigm for press freedom amidst the recent sociopolitical and structural transformation of the Korean news media.
Given that "the extent to which a society is open and democratic can be measured in great part by the degree to which the press in that society is independent and vigorous," an in-depth look into the evolving Korean press law most likely will demonstrate how Korean society has transformed from development dictatorship to civilian democracy over the past decade. The primary focus of this paper is on mass communications law as a crucial moving force in the changing Korean society.
This paper goes beyond the textual analysis of the constitutional and statutory framework on press freedom by examining major judicial interpretations. It centers on the political, social and cultural interface among the press, its government and the public through law because "all press systems reflect the values of the political and economic systems of the nation within which they operate."
DOES THE ANTITRUST LAW
REALLY MATTER IN INTERNET AGE?
Kuo-Feng TSENG,
Department of Radio-Television
National Chengchi University (Taiwan)
The antitrust law has been used to keep market competition for over one hundred year. However, in the globally convergence age of media and information, the product and geography markets are hard to be clearly defined. For example, if we apply the antitrust law to analyze the market of the online MP3 music or the streaming video, should we consider the local or the whole world in the same market? Is the On-Demand streaming video compatible with the traditional cable or terrestrial television service?
In addition, the industries believe that there are sever competitions from the destructive new entries outside the existing information and media markets. For example, in the past few years, there are several new billionaire enterprises established from scratch, such as Yahoo, eBay or Google, which bring competition and change the current market structure. Therefore, they do not think the government should apply the antitrust law to intervene with the market mechanism.
Basically the antitrust law tries to sustain the atomic smaller companies to keep market competitive. However, the perspectives of structure regulation really raise different arguments. One thinks that the atomic structure regulation reduces the competitive advantage and unnecessary. On the other hand, the other considers that the convergence of the Internet, home entertainment, mobile phone and other information as well as media has raised the concerns of the extended monopoly power, such as the operation system of Microsoft.
This paper will review Taiwan and US related cases to understand the current principles of the antitrust laws applied to the media and information markets. Especially, it will focus on discussing the ambiguous definitions of product and geography markets. From the past history, although the law itself still emphasizes on the importance of the market structure, the antitrust law actually did not accomplish the goal of competitive structure. In the past ten years of media merger history, fewer cases are charged for violating antitrust law, or it is unnecessary to implement it. Therefore, the paper hopes to rethink the role of the antitrust law. Whether other principles, such as open source codes of computer software, can sustain a better mechanism to keep the Internet industry competitive. From the analysis of the prior cases, we hope to find out the other perspectives of maintaining the competition in the globally information and media age.
LET A HUNDRED
FLOWERS BLOOM:
A MALAYSIAN CASE STUDY ON BLOGGING TOWARDS A DEMOCRATIC CULTURE
Tang HANG WU,
Faculty of Law
National University of Singapore
Some recent commentaries paint a bleak picture of the state of human rights and civil liberties in Malaysia. With regard to freedom of speech, Malaysia has always had a myriad of laws capable of suppressing free speech. However, a recent development suggests that this depressing picture might have changed slightly for the better. There has been a growing phenomenon on the Internet which might challenge the Malaysian government’s hegemony of limiting free speech in the country. Beginning in late 2002 / early 2003, Malaysian bloggers are starting to come into their own. Updated frequently, robust in their criticism, showing extraordinary resourcefulness and relying on their readers as sources, blogs are starting to compete with traditional media in playing a significant role in disseminating information to the public and posing a new challenge to laws designed to limit free speech.
There are four main parts to this paper. In the first part, I consider whether on a theoretical level blogging changes anything with regard to our understanding of the notion of freedom of expression. Two views are considered. On one hand, Andrew Murray argues that a Meikeljohnian democratic approach is of little value when examining free speech in cyberspace. He notes: ‘[v]ery rarely is democracy encountered in cyberspace. For this reason the democratic approach [to free speech] is rejected as incapable of providing a philosophical foundation for the following analysis of free expression in relation to the developing jurisprudence of cyberspace.’ As opposed to this view, Jack Balkin thinks that digital technologies ‘highlight the cultural and participatory features of freedom of expression’ enabling more people to participate in the spread of ideas and the dissemination of information. In doing so, the Internet does alter the social conditions of speech in promoting a democratic culture. In this paper, it is suggested that Professor Jack Balkin offers us a better framework of analysis with regard to digital speech.
In the second part of this paper, I will briefly review the laws which restrict freedom of speech in Malaysia namely sedition law, the Internal Security Act which allows detention without trial, law of contempt of court, defamation, laws for licensing of newspapers, the Official Secrets Act, laws against freedom of assembly and freedom of association. I will show how bloggers route around these prohibitive laws by publishing online.
In the third part of the paper I will present a case study on how a small group of Malaysian bloggers started a movement which is now a formidable force in disseminating information and promoting a democratic culture. In this case study, I will demonstrate that this development affirms this paper’s vision of how the existence of these digital communities encourages a democratic culture. Also, the case study shows how bloggers manage to route around the laws limiting free speech described in part two of this paper. In my account, I will also trace the key events which bloggers in Malaysia played a vital role as a source of information namely the Iraq war, the SARS outbreak in Asia and the recent earthquake and tsunami disaster in South East Asia.
Session 2: MEDIA SELF-REGULATION
PRESS SELF-REGULATION:
A COSTS-AND-BENEFITS ANALYSIS
Eric FREEDMAN,
School of Journalism
Michigan State University (USA)
and
Kuang-Kuo CHANG
Nanyang Technological
University (Singapore)
Major news organizations in the United States, including CBS News, the New York Times, USA Today and the Associated Press, have been hit by recent credibility-damaging ethics scandals involving fabricated stories, inadequate research and other professional failings. Meanwhile, U.S. media companies lost 40 percent of the libel cases that went to trial in 2004, and average verdicts awarded to successful plaintiffs averaged $3.4 million in the 2000s. These developments carry widespread implications for public confidence in the press and the press’s effectiveness as a watchdog in a democratic society. This study uses a costs-and-benefits analysis to examine the effectiveness of several forms of press self-regulation. Literature in social psychology suggests that self-regulation is a reflection of and reaction to the social environment and pressure. This analysis suggests that the economic and social costs of self-regulation through ombudsmen, press councils, public journalism, and government-fostered retraction policies outweigh the benefits from practicing such measures, despite the significant economic expense to the press of defending litigation.
MEDIA SELF-REGULATION:
A CASE-STUDY OF HONG KONG
Mei Ning YAN,
Department of Journalism, Hong Kong Baptist University
This paper will analyse and explore the potential and future of self-regulation of the Hong Kong media, both print and broadcast, against the interplay between the longstanding tradition of control and the ideals of freedom and democracy. Theories and practices of media self-regulation have been much researched and discussed in Europe in recent years in the quest for a new model of governance in the information age. It is widely perceived that self-regulation can serve the dual purposes of promoting media freedom and media accountability. In Hong Kong, an independent press council was put in place in 2000 in an attempt by some sectors of the territory’s print media to forestall a statutory press council. With three major dailies constituting some 70% of the total newspaper circulation determined to stay away from the independent press council, reactions towards its performance have been mixed. Indeed, the body has suffered from severe funding problems in the past year and is being sued for defamation by a major magazine. Meanwhile, the Hong Kong Law Reform Commission in late 2004 reaffirmed the necessity of a statutory commission in curbing intrusion of privacy by print media. In sum, self-regulation of the Hong Kong print media is in its infancy, facing an uncertain future. On the other hand, the broadcasting sector is still under a government controlled regulatory regime, despite of the fact that the Hong Kong television market has been opened up. The Broadcasting Authority, the territory’s statutory regulator for the broadcast media, suffers from lack of independence and transparency. Time and again in the past few years, content regulation has resulted in controversial adjudications. Reform of the regulator is overdue. The option of self-regulation or co-regulation has scarcely been explored.
Session 3: INTERNET REGULATION IN DEVELOPED COUNTRIES
RESTRICTIONS TO THE INTERNET ACCORDING TO GERMAN LAW
Dr. Reinhart Ricker,
Appointed Professor of Media Law and Media Policy,
Mainz University (Germany)
The free flow of information in the world wide web offers excellent possibilities for fast and easy access to information. Therefore, the internet is an important means for forming an opinion which is so very essential to our democracy.
As in the European Community, the Federal Republic of Germany stands up for the protection of freedom of opinion and information as a constitutional right for everybody in its constitution as well as for the free flow of information in the world wide web.
Unfortunately, to some extent the internet is being misused as a forum for spreading contents that are able to harm our society. The circulation of child pornography as well as the publication of right-wing extremist incitement of the people or blueprints for bombs and explosives brought ill fame to the internet.
In order to enable legal proceedings against such misuse, legal restrictions to the internet must exist. In Germany, these legal bars cover lots of aspects such as the protection of minors, the protection of personal honour and the protection of minorities against racial discrimination.
Nevertheless, by the embodiment of the freedom of information, speech, press, broadcasting and film in the liberally orientated German Constitutional Law, the full scope of freedom of communication in Germany is secured.
Due to new regulations of the Children and Young Persons Act which came into force in spring 2003, requirements regarding juvenile security in the internet in Germany are comparatively high. Instead of loosening the lawful regulations as it was originally planned, the Federal Government and the Federal States enacted new laws in which these regulations of Children and Young Persons Act were intensified.
This development is mainly based on an event which took place in 2002. In that year, several pupils and teachers were killed and injured by a former pupil of a school in the city of Erfurt, before the madman finally shot himself. Before, the culprit had occupied himself intensively with violent computer games in which human figures turn against and kill each other. Already during the event in the school, the media reported life. After this crime the run amok, the culprit, his living conditions, and particularly his habit of playing brutal telegames were manifold described and analysed in the media.
It came to fierce discussions about the effects of violence in the media on children and young persons. Especially the gaps of the Protection of Children and Young Persons Act in the internet were further looked at by the general public which demanded and was also granted stronger regimentations to protect children and young persons from the electronic media.
At the moment, these new regulations are on the test stand. Especially the concept of so-called regulated self-regulation, by which the own responsibility of internet suppliers was strengthened, is being critically observed. Because of the huge increase of internet activities, the strengthening of self-control is meanwhile considered as the wisest method to regulate internet contents. For it is simply not possible for the responsible authorities to control all offers in the internet.
In the course of these numerous new regulations for the internet, different laws were adapted and thus a more uniform set of rules for the internet was created. The different rules which regulate the internet itself were however not summarized in one code of law. However, the utilization of these rules was unified. Nevertheless, there are still several regulations to be considered in the German law. The most important regulations will be presented and explained within the context.
SPAM IN THE HOLY LAND OR
THE REGULATION OF SPAM IN ISRAEL
Yuval Karniel,
Academic College of Management (Israel)
The Internet has become the most efficient method of communication for most of the world. Within minutes, an individual in one country can locate information on almost any subject, access the most current news, chat with a colleague across the world, and maintain a constant correspondence with any other email user. Unfortunately, direct marketers have taken advantage of this extraordinary tool and internet users are deluged with massive doses of unsolicited commercial mail, known as Spam. Mirroring the "junk" mail sent through traditional postal services, Spam has spiraled out of control in recent years, and along with electronic mail, its tactics include annoying telemarketing and telephone surveys as well as mass fax advertising.
Besides the time wasted by individuals disposing of such mail, electronic Spam often contains pornographic or vulgar messages, offending the unwitting recipient when opened. Frequently, the true intent or sender of the message is unclear and misleads the recipient into innocently accepting mail which intrudes on his or her's privacy and peace of mind. The difficulty in stopping Spam from traveling on the internet is compounded by the fact that most of these messages arrive from undisclosed addresses or senders.
Spam does not discriminate between countries, and Israel, despite its small size, is no exception. Together with other nations around the world who acknowledge the need for state intervention and regulation for this type of mass marketing, the State of Israel is examining ways to enact effective anti-Spam legislation. Careful to balance its core democratic values of freedom of speech and expression for the marketers against the right to privacy of its citizens, Israel's legislature is currently reviewing two proposed anti-Spam bills.
The first proposed legislation, sponsored by Israel's Communications Ministry, is based on the European "Opt In" model whereby the consumer must give express consent to receive any type of mass marketing solicitations via the internet, fax and telephone wires. This approach focuses on the dangers of mass marketing such as the fear of unlawful penetration into secure networks, private computers and the dissemination of computer viruses. Moreover, the bill dictates that any lawful solicitations must include the sender's true name and a viable return address.
The second bill, endorsed by Israel's Consumer Council, adopts the "Opt Out" approach employed by the United States. Guided by the laws of privacy, individuals who wish to block unsolicited emails can do so by registering with a national registry. Advertisers of products or services who want to send out mass mailings of all kinds can only do so if the intended recipient does not appear for 30 consecutive days on the registry prior to the dispatch of the solicitation.
Both of these proposed solutions provide a unique opportunity to study the various approaches in fighting Spam worldwide and to examine whether a small country such as Israel can solve this problem on its own or must resort to using a global solution.
CYBER LAW IN INDONESIA:
AN ANTICIPATION
Hinca IP PANDJAITAN,
Executive Director,
Media Law & Policy Centre (Indonesia)
Indonesian government prepare New Criminal Law Draft that will send to discuss in parliament this year. There are 7 articles that state and regulate cyber crime on title «crime for information and telematicts»; (1) as a crime for everyone that with out rights to access computer and/or electronic system with a main goal to create, to attack, to avoid information, (2) as a crime for computer’s agent / distributor with out prepare a system protection, (3) as a crime for everyone to have domain name with out a bad faith and against fair competition, (4) as a crime for everyone who has no rights to access computer and electronic system, (5) as a crime for everyone that with out rights to access computer and/or electronic system with a main goal to create, to attack, to avoid government’s information, (6) as crime for everyone who use and/or access computer and/or electronic system, with out right with main goal to obtain information from central bank, credit cards, and (7) as crime for everyone with out rights to produce child pornography.
That Criminal Law draft is a part of Indonesian anticipation to response of The World Summit on the International Society (WSIS I), Geneva, December 2003 that asked UN Secretary General Kofi Annan to establish a special «Working Group on Internet Governance» (EGIG).
This paper will explore and show how Indonesian prepare and build a cyber law system with seven articles that state in Criminal Law draft.
OPPORTUNITIES AND CHALLENGES OF INTERNET:
COPING WITH LEGISLATIONS IN CYBER SPACE
Mohd Safar HASIM,
School of Media and Communications Studies
National University of Malaysia
This paper will look at Malaysian legislations such as Computer Crime Act, 1997, the Penal Code, and the Internal Security Act to combat computer crimes. Oftentimes these are the laws mentioned for possible use against perpetrators of cyber crime. Where possible, this paper will compare and contrast with legislations in other countries. The world is now open to all kinds of opportunities and at the same time have to contend with challenges posed by the advent of Internet. On the positive side, the Internet creates a new environment for a more efficient delivery system and communication in the world. For the humankind, this means various transactions, be they e-commerce or e-government, etc, etc, can now be done in a more conducive atmosphere. However, the Internet is not without its downside. The e-mail, for instance, is a real boon for fast and cheap communication. But it can be a nightmare for many. Unwanted mails, such as spam, junk mails, and hate-mails could choke e-mail boxes and cause a lot of frustrations. Worse, if the unsolicited mails come with virus. Unwary users who open their e-mails could even crashed their computers or caused havoc to their data. In Malaysia, there were 14,371 incidences of spam reported in 2004 (Malaysian Computer Emergency Response Team – MyCert, 2005). During the same period, some 145 cases of hack threat were also reported. Hacking, though small at this time, posed a much greater threat to Internet users as it may result in great financial losses. Realising the potential and the inherent dangers of Internet, Malaysia, like many other countries in the world, have promulgated several laws, essentially to regulate the new medium. Such laws include, Communications and Multimedia Act 1998, and Computer Crime Act 1997. In 2003, some 857 cases were brought to court under the Computer Crime Act 1997 involving fines totaling RM2.9 million (US$0.74 million). Up to September 2004, some 355 cases were brought to court and fined RM1.7 million (US$0.45 million). However, not all cases brought to court under the Computer Crime Act ended in conviction. The main problem is evidence. It is relatively easy to pinpoint computer where the crime was committed. However, it is not as easy to nab the culprit, and even if arrested, it is difficult to get a conviction.
Session 4: MEDIA FREEDOMS REVISITED
CHECKMATING MEDIA GLOBALIZATION AND
OR HINDERING FREE FLOW OF
INFORMATION: THE LEGAL, CONSTITUTIONAL AND REGULATORY BASES FOR
PROHIBITION OF LIVE REBROADCAST OF FOREIGN MEDIA’S NEWS ON
NIGERIA’S LOCAL TERRESTRIAL STATIONS
Abubakar D. ALHASSAN
Bayero University, Kano (Nigeria)
Nigeria, Africa’s most populous nation, commenced deregulation of its broadcasting industry in the early 1990s even before democratization of the national polity. A law establishing a broadcast regulatory agency, the National Broadcasting Commission (NBC), was enacted in 1992 and by 1994 the commission began issuing licenses to interested private radio and television broadcasters. The freedom of speech to be enjoyed by such private broadcasters was expected to be far more than that of government-owned broadcast media, especially after Nigeria’s return to democratic rule in 1999. Therefore, as part of the increasing globalization of broadcasting, unsuspecting international media organizations (notably the BBC), entered into agreement with some Nigerian private broadcasters to rebroadcast the foreign media’s news program live to the Nigerian audience on the local FM and AM stations. However, last April, the NBC, citing possible harm of such broadcast to national interest, banned the live rebroadcasting of foreign media’s news and threatened to sanction any erring station. In the immediate aftermath of the prohibition, the question asked is whether such a ban has any legality having regards to Section 39 of the Nigerian constitution that guarantees the freedom of expression and of the press and the right to receive and impart information. This paper examines the legal implications of the NBC action by analyzing the statutory, regulatory, and constitutional provisions as contained in the NBC Act, the National Broadcasting Code, and the Nigerian Constitution respectively.
The findings of this paper will add to our knowledge of how nations of the global South craft legislation and enforce regulations aimed at liberalizing broadcasting locally but curtailing the influence of global media organizations and, perhaps, thereby hindering the effusive flow of information (mainly) from global North. The paper enhances our understanding of the dynamics of media law in emerging democracies that are confronting the challenges of balancing broadcast deregulation and freedom of expression on the one hand with and media control and regulation on the other hand. This is an area occasioned by acute shortage of research literature. Further, foreign media organizations desirous of investing in Nigeria or entering into agreements with the Nigerian media and scholars of comparative media law would also find the paper helpful as it provides an overview of the legal environment of broadcasting in Nigeria.
THE JOURNALIST’S PRIVILEGE TO
PROTECT NEWS SOURCES:
U.S. AND INTERNATIONAL LAW COMPARED
Kyu HO YOUM,
University of Oregon (USA)
The appeals court of the U.N. International Criminal Tribunal held in December 2002 that war correspondents will be protected by a qualified journalist’s privilege against being forced to testify in prosecutions before the tribunal. The court ruled that a war correspondent may be subject to a subpoena only if the evidence sought is directly relevant to determination of a core issue in the case and that there is no reasonable alternative means to obtain the evidence other than through the reporter in question. The decision was the first of its kind in international law on a war correspondent’s right to keep his or her news sources confidential.
The decision in Prosecutor v. Radoslav Brdjanin (2002) was hailed as an important victory for freedom of the press internationally. It «provides the U.S. press greater rights abroad, generally speaking, than what they have here [the United States],» stated James Goodale, a leading American media attorney. «This decision should be a signal for publishers in the U.S. to fight as hard to protect reporters hear as the Washington Post did in protecting [former Washington Post reporter] Jon Randal there.» Likewise, Floyd Abrams, who represented the international amici group and argued before the appeals court of the International Criminal Tribunal, said that the decision «will serve as precedent for other courts tackling the issue of the reporter’s privilege, including courts in the United States.» (emphasis added)
On the premise that the International Criminal Tribunal’s appellate ruling on the journalist’s privilege showcases a more expansive thinking on freedom of the press in international law than those of American courts under the First Amendment, this paper will examine the journalist’s privilege from a U.S. and international perspective. The proposed comparative analysis of the journalist’s privilege will help American journalism and mass communication law scholars develop a critical understanding of the value and relevance of international law to their media law.
EMERGING PRIVACY LAW IN THE UNITED KINGDOM:
A COMPARISION WITH THE TORT IN THE UNITED STATES
Robert L. SPELLMAN,
Associate Professor of Journalism,
Southern Illinois University-Carbondale (USA)
Under the influence of jurisprudence of the European Court of Human Rights, the press in the United Kingdom now has to contend with an emerging privacy tort law. So far the boundaries of the law as it relates to freedom of expression remain unclear. Unlike the United Kingdom, whose common law historically did not recognize a privacy tort, most of the states of the United States have recognized the tort for many years and its branches are reasonably well defined. The trend in the United States has been to restrict the privacy tort when it conflicts with press freedoms. Early case law suggests an opposite trend in the United Kingdom. The paper examines case law in both jurisdictions as well as that of the European court as it influences United Kingdom jurisprudence.
PUBLICATION OF ILLEGALLY INTERCEPTED
ORAL OR WIRE COMMUNICATIONS
Gyong Ho KIM,
Department of Journalism & Public Relations
College of Law & Political Science
Cheju National University (Korea)
With the advance of communication technologies, journalists have actively utilized them to gather information for news. Pencils and notebooks were once the primary tools of newsgathering, and they have been replaced by newer technologies, such as tape recorders, notebook computers, and MP3 players. Armed with such technologies, journalists use a variety of methods for acquiring information. Occasionally, some of them are deemed to be crimes, and criminal penalties are imposed. U.S. courts have emphasized that the First Amendment does not shield all conduct designed to gather news. In other words, «generally applicable laws do not offend the First Amendment,» and crimes and torts committed in a course of newsgathering fall outside constitutional safeguards. This principle has been affirmed in a number of newsgathering cases.
Publication of the content of illegally intercepted oral or wire communications has become an issue in state and federal eavesdropping cases. Some courts consistent with the line of the Supreme Court cases from Cox Broadcasting Corp. v. Cohn to Florida Star v. B. J. F. allowed constitutional protection for publishing unlawfully intercepted wire or oral communications, but some other courts have denied the media’s First Amendment claims. In addition, whether the media are responsible for publication of illegally intercepted communication by a third person has been more specific issue.
This study examines media liability in publishing illegally intercepted oral and wire communications by analyzing significant wiretapping cases. It also discusses how these types of cases weigh liability when compelling state interest of the highest order is at hand. It further probes the proper balance between the publication of private communications, the protection of individual rights, and the First Amendment.