Deaths

'The Law of Digital Resurrection' by Victoria Haneman in (2025) 66(5) Boston College Law Review 1569-1626 comments 

The digital right to be dead has yet to be recognized as an important legal right. Artificial intelligence, augmented reality, and nanotechnology have progressed to the point that personal data can be used to resurrect the deceased in digital form with appearance, voice, emotion, and memory recreated to allow interaction with a digital app, chat bot, or avatar that may be indistinguishable from that with a living person. Users may now have a completely immersive experience simply by loading the personal data of the deceased into a neural network to create a chatbot that inherits features and idiosyncrasies of the deceased and dynamically learns with increased communication. There is no legal or regulatory landscape against which to estate plan to protect those who would avoid digital resurrection, and few privacy rights for the deceased. This intersection of death, technology, and privacy law has remained relatively ignored until recently. This Article is the first to respect death as an important and distinguishing part of the conversation about regulating digital resurrection. Death has long had a strained relationship with the law, giving rise to dramatically different needs and idiosyncratic legal rules. The law of the dead reflects the careful balance between the power of the state and an individual’s wishes, and it may be the only doctrinal space in which we legally protect remembrance. This Article frames the importance of almost half of a millennium of policy undergirding the law of the deceased, and proposes a paradigm focused upon a right of deletion for the deceased over source material (data), rather than testamentary control over the outcome (digital resurrection), with the suggestion that existing protections are likely sufficient to protect against unauthorized commercial resurrections.

US Personality Rights

'Endorsing After Death' by Andrew Gilden in (2022) 63 William and Mary Law Review comments 

An endorsement is an act of giving one’s public support to a person, product, service, or cause; accordingly, it might seem impossible for someone to make an endorsement after they have died. Nevertheless, posthumous endorsements have become commonplace in social media marketing and increasingly have been embraced by trademark and unfair competition laws. Entities representing Marilyn Monroe, for example, have successfully brought trademark claims for the unauthorized use of Marilyn’s name, have successfully brought false endorsement claims under Section 43(a) of the Lanham Act, and regularly have promoted products through the Instagram-verified ‘@marilynmonroe’ page. Marilyn Monroe survives today as a highly-paid celebrity endorser even though she died almost 60 years and her ‘Estate’ is controlled by individuals with zero personal connection to her. 

 This paper closely examines the growing body of posthumous endorsement law and sets forth a new framework that better respects both the agency of the deceased as well as the continuing bonds between the deceased, their fans, and their families. Intellectual property scholars have critiqued other forms of postmortem IP, such as copyright and publicity rights, but this article shows that posthumous endorsement rights pose unique and largely unaddressed concerns. First, these rights frequently pose a continuity problem: courts have allowed endorsement rights to shift from the decedent to their heirs to unrelated third parties without acknowledging just how differently situated each of these entities is with respect to the communicated endorsement. Second, these rights pose discursive problems: they allow rightsholders to speak in the ‘official’ voice of the decedent, leveraging the individual’s continuing cultural influence into commercial and political endeavors that emerge long after their death. Third, these rights pose dignitary concerns: individuals are often symbolically brought back from the dead without their consent and forced to speak on behalf of entities that have purchased their goodwill on the open market …

Succession in Canada and elsewhere

'Freedom of Testation and Family Claims in Canada' by Alexandra Popovici and Lionel Smith in Kenneth G C Reid, Marius J de Waal, and Reinhard Zimmermann (eds), Comparative Succession Law III (Oxford University Press, 2019) comments

This paper explores the ways in which Canadian legal orders address the tension between freedom of testation and the claims of the family of the deceased. 

The province of Quebec has a civilian law of succession, while the common law governs in the other provinces and in the territories. Under federal law, a different regime governs succession in relation to many members of First Nations. 

At the dawn of the twentieth century, an unbridled freedom of testation prevailed in most of Canada. In the decades that followed, the law evolved to temper this principle in favour of protecting the family of a deceased person, so that obligations of support did not simply vanish upon death. The shape and structure of provision for the family is, however, diverse across the country. There is a great deal of variation even among the statutory regimes in the common law provinces; some require a claimant to show need, an inter vivos obligation of support, or both, while others allow claims even by adult independent children. Under those regimes, where a claimant has standing, the jurisdiction of the courts to intervene in the testator's chosen distribution is highly discretionary. In relation to those members of First Nations to whom it applies, federal law grants a wide power to intervene in the distribution of an estate, in this case not to the courts but to the relevant minister. In Quebec, by contrast, the courts and the Civil Code bear the imprint of a longstanding commitment to freedom of testation. Quebec law aims to convert legal obligations of support that existed at the moment of death into claims against the estate, rejecting any wide discretion and preserving freedom of testation as much as possible. 

In a broadly comparative context, the unexpected conclusion is that in Canada, it is not the common law but the civil law of Quebec that offers the most freedom to a testator. 

'Birmingham v Renfrew (1937): The Foundations of the Mutual Wills Doctrine' by Ying Khai Liew in Brian Sloan (ed), Landmark Cases in Succession Law (Hart, 2019) comments

This paper discusses the facts of Birmingham v Renfrew and the impact of the decision on the development of the mutual wills doctrine in Anglo-Australian law. Much like laying the secure foundations of a building, Birmingham has supplied three central ‘pillars’ upon which the doctrine has gradually been built upon, and upon which the future development of the doctrine can securely be based. The three ‘pillars’ are: the interaction between ‘contract’ and equity, the meaning of ‘contract’, and the rationale of the mutual wills doctrine.

'A Will for Willa Cather' byThomas Simmons in (2018) 83(2) Missouri Law Review comments

In a broadly comparative context, the unexpected conclusion is that in Canada, it is not the common law but the civil law of Quebec that offers the most freedom to a testator.

Artists hold their creative works dear: whether paintings, poems, or songs, their human creators treat them with special care and often desire that same care be exercised after death. Directing particular uses of property from the grave can be met with several objections. The objections sound in alarmist responses to ‘dead hand control’ and include the Rule Against Perpetuities, uncertainty, capriciousness, and the repugnancy of restraints on alienation. This Article considers these and other recurring objections in one particular context and with one particular variety of creative works: an author’s unpublished and private letters to her friends. A mechanism for achieving an artist’s restrictions over the use of her creative works after death is introduced in the form of a purpose trust. Purpose trusts are typically utilized by pet owners to ensure the continued care and preservation of their pets after the owner’s death. Purpose trusts are unique in that they lack ascertainable beneficiaries to enforce the trustee’s duties. Many purpose trusts do not qualify as charitable trusts (which can be enforced by the state attorney general’s office). Instead, a private “enforcer” must be provided. Here, a noncharitable purpose trust designed to restrict access to an author’s private correspondence is introduced; a testamentary trust hypothetically created under the terms of the Last Will and Testament of the celebrated American author Willa Cather.

Personality Rights

'The Right of Publicity's Intellectual Property Turn' by Jennifer E. Rothman in (2019) 42(3) Columbia Journal of Law and the Arts comments

The Article is adapted from a keynote lecture about my book, The Right of Privacy Reimagined For A Public World (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age. 

The lecture (as adapted for this Article) explores in greater depth one major theme drawn from the book―the right of publicity’s turn in the late 1970s from being a personal right rooted in an individual to being an intellectual property right separable from the underlying identity-holder. This transformation of people into a form of intellectual property has led to significant expansions in the reach and scope of right of publicity laws across the country. At the same time, treating the right of publicity as IP has undermined First Amendment and copyright-based limits on these laws, and jeopardized the freedom of the very identity-holders upon whose interests the right is justified. The Article considers not only whether the IP rubric is appropriate for the right of publicity, but also whether the challenges posed by right of publicity laws are a magnified version of more general problems that IP laws face today ― in particular, the continued expansion of these rights unmoored from the initial justifications for the entitlements, and without adequate protections for socially valuable uses.

'Selfmarks' by William McGeveran in (2018) 56 Houston Law Review 333 comments

'Selfmarks' are branded personal identifiers that can be protected as trademarks. From Kim Kardashian West to Beyoncé’s daughter, attempts to propertize persona through trademark protection are on the rise. But should they be? The holder of a selfmark may use it to send a signal about products, just like the routine types of brand extension, cross-branding, and merchandising arrangements fully embraced under modern trademark law. Yet traditional trademark doctrine has adjusted to selfmarks slowly and unevenly. Instead, the law has evolved to protect selfmarks through mechanisms other than trademarks. In an age where brands have personalities and people nurture their individual brands, it is time to ask what principled reasons we have not to protect the individual persona as a trademark.

Clown Eggs

'Clown Eggs' by David Fagundes and Aaron Perzanowski in (2019) 94(3) Notre Dame Law Review 1313 comments 

Since 1946, many clowns have recorded their makeup by having it painted on eggs that are kept in a central registry in Wookey Hole, England. This tradition, which continues today, has been referred to alternately as a form of informal copyright registration and a means of protecting clowns’ property in their personae. This Article explores the Clown Egg Register and its surrounding practices from the perspective of law and social norms. In so doing, it makes several contributions. First, it contributes another chapter to the growing literature on the norms-based governance of intellectual property, showing how clowns – like comedians, roller derby skaters, tattoo artists, and other subcultures – have developed an elaborate informal scheme in lieu of state-created copyright or trademark law to regulate their creative production. Second, this Article explores a rarer phenomenon in the norms-based IP context: formalized registration related to norms-based ownership rules. It shows that the Register exists not only to support those rules, but it also serves a host of nonexclusion functions, including expressing members’ professionalism, conferring a sense of prestige, and creating a historical record. Finally, this Article shows how its analysis of the Clown Egg Register offers lessons for the study of registers in the context of tangible and intellectual property alike.

Personality Rights, Privacy and Copyright

'Recognition and Protection of Personality Rights: Classification and Typology' by Johann Neethling in (2018) 9(3) Journal of European Tort Law comments

In this article the premise is that personality interests exist in factual reality independently of any legal recognition. This emphasis on the pre-legal existence of individual personality interests is not merely of philosophical interest, but of cardinal jurisprudential and practical significance as it brings to the fore the fact that the qualities of personality interests are not determined by legal principles, but primarily by their nature in the sphere of factual reality. A jurisprudential definition and delineation of personality interests, which is essential to enable protective measures to be properly applied in practice, does not detract from this. This classification and typology therefore take account of factual reality, supplemented on a comparative law approach by the personality rights identified and delimited by jurists, the courts and legislatures, as well as typical examples of infringements of personality sanctioned by the different legal systems. Accordingly, the following classification and typology of personality rights are proposed: the right to life, the right to physical integrity, the right to physical liberty, the right to reputation, the right to dignity, the right to feelings, the right to privacy, and the right to identity.

'Monkey Selfie and Authorship in Copyright Law: The Nigerian and South African Perspectives' by Caroline Ncube and Desmond Oriakhogba in (2018) 21 Potchefstroom Electronic Law Journal comments

A photograph taken by a monkey was in the centre of a copyright claim in the famous monkey selfie case in the United States of America. Suing as next friend of the monkey named as Naruto, the People for the Ethical Treatment of Animals contended that copyright in the photograph belonged to the monkey as author of the photograph since the monkey created the photograph unaided by any person. On the motion of the defendants, the case was dismissed by the US district court on the ground that the concept of authorship under US Copyright Act cannot be defined to include non-human animals. The dismissal order was confirmed by a three-judge panel of the US Court of Appeal of the Ninth Circuit. This paper reviews the case in the light of the concept of authorship and ownership, with specific focus on authorship of photographs, under the Nigerian Copyright Act and South African Copyright Act. In so doing, it examines and relies on Ginsburg’s six principles for testing authorship to the authorship of photograph under the Acts. It also relies on the concepts of subjective rights and legal personality to explain the implication of conferring copyright ownership on non-human animals. It argues that for authorship of, and ownership of the copyright in, a photograph to be established under the Nigerian Copyright Act and South African Copyright Act, a legal person must have created the photograph. Consequently, for purposes of argument, the paper proceeds on the assumption that the monkey selfie case originated from Nigeria or South Africa. After analysing of relevant statutory provisions and case law, the paper finds that the Nigerian Copyright Act and the South African Copyright Act do not envisage conferral of authorship in particular, and copyright protection in general, to a non-human animal. It then concludes that the courts in both countries would not reach a different conclusion from the one made by the US courts.

'Unmasking the Right of Publicity' by Dustin Marlan comments 

In the landmark case of Haelan Laboratories v. Topps Chewing Gum, Judge Jerome Frank articulated the modern right of publicity. The right is now most often seen to protect the strictly commercial value of one’s “persona” — the Latin-derived word originally meaning the mask of an actor. Among other criticisms, the right of publicity is frequently accused of lacking a coherent justification, permitting only economic redress against public harms to the persona, and stripping away individual identity by allowing for an alienable, proprietary right in one’s personality. Why might Judge Frank have been motivated to create a transferable intellectual property right in the monetary value of one’s persona distinct from the psychic harm to feelings, emotions, and dignity protected under the rubric of privacy? 

Judge Frank was a leading figure in the American legal realist movement known for his unique and controversial “psychoanalysis of certain legal positions” through seminal works including Law and the Modern Mind, Why Not a Clinical Lawyer-School?, and Courts on Trial. His work drew heavily on the ideas of psychoanalytic thinkers, like Freud, Piaget and Jung, to describe the distorting effects of infantile and unconscious wishes and fantasies on the decision-making process of legal actors and judges. For Judge Frank, the psychoanalytic interplay between dual parts of the personality supported the realist interpretation of lawmaking as a highly subjective and indeterminate activity. Indeed, though Judge Frank provided little rationale for articulating a personality right separate from privacy in Haelan, he had given a great deal of attention to the personality in his scholarly works. 

In the spirit of Judge Frank’s psychoanalytic jurisprudence, this Article suggests that the right of publicity’s aim, apart from the personal right to privacy, may be understood through the psychoanalytic conception of the personality — divided into public and private spheres. In the psychological sense, the term persona, or “false self,” refers to an individual’s social façade or front that reflects the role in life the individual is playing. That is, as a metaphor for the actor and their mask, the persona is used to indicate the public face of an individual, i.e., the image one presents to others for social or economic advantage, as contrasted with their feelings, emotions, and subjective interpretations of reality anchored in their private “true self.” However, the law’s continued reliance on a dualistic metaphor of the personality — i.e., divided sharply into inner (private) and outer (public) subparts — appears misguided amidst a growing technology, internet, and social media-driven need for interwoven privacy and publicity rights.

US Personality Rights

'The Right of Publicity: Privacy Reimagined for New York?' by Jennifer E. Rothman in (2018) 36(3) Cardozo Arts and Entertainment Law Journal comments 

 This essay is based on a featured lecture that I gave as part of the Cardozo Arts & Entertainment Law Journal’s  symposium on a proposed right of publicity law in New York. The essay draws from my recent book, The Right of Publicity: Privacy Reimagined for a Public World, published by Harvard University Press. Insights from the book suggest that New York should not upend more than one hundred years of established privacy law in the state, nor jeopardize its citizens’ ownership over their own names, likenesses, and voices by replacing these privacy laws with a new and independent right of publicity law, at least not the versions thus far proposed. 

The essay begins by busting a host of myths about the development of privacy law in New York and across the nation. The tort-based right of privacy was, and remains, the original right of publicity, and was even referred to as a right to stop “unwarranted publicity.” Privacy laws, from the beginning, protected the famous and anonymous alike, and allowed for recovery of economic and business damages, as well as of emotional distress and reputational harms. 

In the essay, I debunk the common, albeit erroneous, claim that the right of publicity was created in 1953 by the Second Circuit Court of Appeals in Haelan Labs. v. Topps Chewing Gum. Instead, the turn to a transferable and independent (of privacy) right of publicity actually occurred later, and was driven in part by Hollywood lawyers and heirs of celebrities who saw the advantages of a transferable property right in a person’s identity. Such a shift, however, is often at the expense of the very individuals the right of publicity is supposed to protect. The essay concludes with some recommendations for New York, and for right of publicity and privacy laws more generally.

Publicity and Group Privacy

'Publicity Right, Personality Right, or Just Confusion?' by Graeme B. Dinwoodie and Megan Richardson in Richardson and Ricketson (eds), Research Handbook on Intellectual Property in Media and Entertainment (Elgar, 2017) comments

There is little consensus internationally as to whether and how the law should respond when celebrities find themselves subjected to unwanted public discussions of their private lives in the media (increasingly on a global basis online), and when their personal attributes are referenced without their consent in certain kinds of advertising and trade. A number of commentators have characterized such intrusions on a celebrity’s personal dignity or autonomy as simply falling among the minor inconveniences of being a celebrity, insufficient to warrant legal protection given important social values such as freedom of speech and cultural pluralism. The lack of consensus is reflected in the uncertain shifting legal lines drawn around celebrity protection, especially in common law jurisdictions which, unlike many civil law jurisdictions, do not adhere to the idea of a full-scale personality right. In this chapter, we canvass the diverse devices that the common law courts have deployed to deal with the grant of celebrity rights. We note and support the messy multivalence we find recognised in common law approaches given the range of dynamic interests that are at play. Such heterogeneity of values might also be relevant to the curtailment of celebrity rights. Thus, we equally support a flexible approach to the limitations, defences and other points at which discretion may be exercised by judges to find a balance between the interests/rights that may be claimed for celebrities (human and otherwise) in controlling the uses of their personal attributes in advertising and trade, and the countervailing interests/rights that others may seek to maintain including in freedom of speech and cultural pluralism.

'Group Privacy: a Defence and an Interpretation' by Luciano Floridi in Linnet Taylor, Luciano Floridi and Bart van der Sloot (eds), Group Privacy: New Challenges of Data Technologies (Springer, 2017) comments

In this chapter I identify three problems affecting the plausibility of group privacy and argue in favour of their resolution. The first problem concerns the nature of the groups in question. I shall argue that groups are neither discovered nor invented, but designed by the level of abstraction (LoA) at which a specific analysis of a social system is developed. Their design is therefore justified insofar as the purpose, guiding the choice of the LoA, is justified. This should remove the objection that groups cannot have a right to privacy because groups are mere artefacts (there are no groups, only individuals) or that, even if there are groups, it is too difficult to deal with them. The second problem concerns the possibility of attributing rights to groups. I shall argue that the same logic of attribution of a right to individuals may be used to attribute a right to a group, provided one modifies the LoA and now treats the whole group itself as an individual. This should remove the objection that, even if groups exist and are manageable, they cannot be treated as holders of rights. The third problem concerns the possibility of attributing a right to privacy to groups. I shall argue that sometimes it is the group and only the group, not its members, that is correctly identified as the correct holder of a right to privacy. This should remove the objection that privacy, as a group right, is a right held not by a group as a group but rather by the group’s members severally. The solutions of the three problems supports the thesis that an interpretation of privacy in terms of a protection of the information that constitutes an individual—both in terms of a single person and in terms of a group—is better suited than other interpretations to make sense of group privacy.

Publicity and Fake News

'The Political Economy of Celebrity Rights' by Mark Bartholomew in Whittier Law Review (Forthcoming) comments

This essay discusses how the right of publicity became such a robust property right — much more far-reaching than analogous rights in copyright or trademark. One cannot explain the accretion of celebrity publicity rights as a matter of legal logic or simple reaction to the growing economic value of celebrity endorsements. Instead, the essay explains the right's expansion from the perspective of political economy. Critical innovations to the right of publicity occurred in the particular political environment of the 1980s and 1990s. Despite some groups' resistance to new, specialized entitlements for celebrities, the conditions were right for a particular coalition of interest groups to push through new vigorous interpretations of the right of publicity. I also discuss the right's expansion from the perspective of a different political actor: judges. At the end of the twentieth century, the political optics of celebrity changed in a way that provided more comfort for judges who were once hostile to the anti-democratic implications of publicity rights. Judges confronted a changing social definition of celebrity that was no longer linked to merit or inner greatness. Anyone, it was now argued, had the potential to become famous. This change in the meaning of fame made celebrity legal protections seem less like a perk for a rare few and more like a fundamental right available to all.

'The Present of Newsworthiness' by Amy Gajda in (2016) 50 New England Law Review 145 comments

In early February 2016, less than a week before this Book Symposium, the Utah Supreme Court decided that the photographic results of a woman’s plastic surgery were not necessarily newsworthy. The decision may seem inconsequential at first. The plaintiff had an abdominoplasty and breast augmentation and agreed that photos be taken “for medical, scientific or educational purposes.” Fox News later aired partially redacted photographs of her nude body and post-operative state in a news story about the benefits and risks of plastic surgery. The plaintiff settled with Fox, but filed a privacy-based lawsuit against her plastic surgeon. The Utah Supreme Court heard the case after a trial court dismissal and decided that the plaintiff’s privacy tort claims should continue. As regarding publication of private facts, the tort most relevant to this Symposium Paper, the court decided for the first time that such claims should include a newsworthiness element and defined the element in line with the Restatement (Second) of Torts. News, the court wrote, “is a concept that has essentially been defined by traditional publishers and broadcasters, ‘in accordance with the mores of the community.’” Therefore, in Utah, if a truthful news item is newsworthy, but privacy-invading, the newsworthiness of the information can trump the plaintiff’s privacy interests.

A Joint Declaration by the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information On Freedom of Expression and 'Fake News', Disinformation and Propaganda states 

 

Having discussed these issues together with the assistance of ARTICLE 19 and the Centre for Law and Democracy (CLD); Recalling and reaffirming our Joint Declarations of 26 November 1999, 30 November 2000, 20 November 2001, 10 December 2002, 18 December 2003, 6 December 2004, 21 December 2005, 19 December 2006, 12 December 2007, 10 December 2008, 15 May 2009, 3 February 2010, 1 June 2011, 25 June 2012, 4 May 2013, 6 May 2014, 4 May 2015 and 4 May 2016;

 

Taking note of the growing prevalence of disinformation (sometimes referred to as “false” or “fake news”) and propaganda in legacy and social media, fuelled by both States and non-State actors, and the various harms to which they may be a contributing factor or primary cause;

 

Expressing concern that disinformation and propaganda are often designed and implemented so as to mislead a population, as well as to interfere with the public’s right to know and the right of individuals to seek and receive, as well as to impart, information and ideas of all kinds, regardless of frontiers, protected under international legal guarantees of the rights to freedom of expression and to hold opinions;

 

Emphasising that some forms of disinformation and propaganda may harm individual reputations and privacy, or incite to violence, discrimination or hostility against identifiable groups in society;

 

Alarmed at instances in which public authorities denigrate, intimidate and threaten the media, including by stating that the media is “the opposition” or is “lying” and has a hidden political agenda, which increases the risk of threats and violence against journalists, undermines public trust and confidence in journalism as a public watchdog, and may mislead the public by blurring the lines between disinformation and media products containing independently verifiable facts;

 

Stressing that the human right to impart information and ideas is not limited to “correct” statements, that the right also protects information and ideas that may shock, offend and disturb, and that prohibitions on disinformation may violate international human rights standards, while, at the same time, this does not justify the dissemination of knowingly or recklessly false statements by official or State actors;

 

Highlighting the importance of unencumbered access to a wide variety of both sources of information and ideas, and opportunities to disseminate them, and of a diverse media in a democratic society, including in terms of facilitating public debates and open confrontation of ideas in society, and acting as a watchdog of government and the powerful;

 

Reiterating that States are under a positive obligation to foster an enabling environment for freedom of expression, which includes promoting, protecting and supporting diverse media, something which has come under growing pressure due to the increasingly difficult economic environment for the traditional media;

 

Acknowledging the transformative role played by the Internet and other digital technologies in supporting individuals’ ability to access and disseminate information and ideas, which both enables responses to disinformation and propaganda, while also facilitating their circulation;

 

Reaffirming the responsibilities of intermediaries, which facilitate the enjoyment of the right to freedom of expression through digital technologies, to respect human rights;

 

Deploring attempts by some governments to suppress dissent and to control public communications through such measures as: repressive rules regarding the establishment and operation of media outlets and/or websites; interference in the operations of public and private media outlets, including by denying accreditation to their journalists and politically-motivated prosecutions of journalists; unduly restrictive laws on what content may not be disseminated; the arbitrary imposition of states of emergency; technical controls over digital technologies such as blocking, filtering, jamming and closing down digital spaces; and efforts to “privatise” control measures by pressuring intermediaries to take action to restrict content;

 

Welcoming and encouraging civil society and media efforts aimed at identifying and raising awareness about deliberately false news stories, disinformation and propaganda;

 

Concerned about some measures taken by intermediaries to limit access to or the dissemination of digital content, including through automated processes, such as algorithms or digital recognition- based content removal systems, which are not transparent in nature, which fail to respect minimum due process standards and/or which unduly restrict access to or the dissemination of content;

 

Adopt, in Vienna, on 3 March 2017, the following Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda:

 

1. General Principles:

 

a. States may only impose restrictions on the right to freedom of expression in accordance with the test for such restrictions under international law, namely that they be provided for by law, serve one of the legitimate interests recognised under international law, and be necessary and proportionate to protect that interest.

 

b. Restrictions on freedom of expression may also be imposed, as long as they are consistent with the requirements noted in paragraph 1(a), to prohibit advocacy of hatred on protected grounds that constitutes incitement to violence, discrimination or hostility (in accordance with Article 20(2) of the International Covenant on Civil and Political Rights).

 

c. The standards outlined in paragraphs 1(a) and (b) apply regardless of frontiers so as to limit restrictions not only within a jurisdiction but also those which affect media outlets and other communications systems operating from outside of the jurisdiction of a State as well as those reaching populations in States other than the State of origin.

 

d. Intermediaries should never be liable for any third party content relating to those services unless they specifically intervene in that content or refuse to obey an order adopted in accordance with due process guarantees by an independent, impartial, authoritative oversight body (such as a court) to remove it and they have the technical capacity to do that.

 

e. Consideration should be given to protecting individuals against liability for merely redistributing or promoting, through intermediaries, content of which they are not the author and which they have not modified.

 

f. State mandated blocking of entire websites, IP addresses, ports or network protocols is an extreme measure which can only be justified where it is provided by law and is necessary to protect a human right or other legitimate public interest, including in the sense of that it is proportionate, there are no less intrusive alternative measures which would protect the interest and it respects minimum due process guarantees.

 

g. Content filtering systems which are imposed by a government and which are not end-user controlled are not justifiable as a restriction on freedom of expression.

 

h. The right to freedom of expression applies “regardless of frontiers” and jamming of signals from a broadcaster based in another jurisdiction, or the withdrawal of rebroadcasting rights in relation to that broadcaster’s programmes, is legitimate only where the content disseminated by that broadcaster has been held by a court of law or another independent, authoritative and impartial oversight body to be in serious and persistent breach of a legitimate restriction on content (i.e. one that meets the conditions of paragraph 1(a)) and other means of addressing the problem, including by contacting the relevant authorities of the host State, have proven to be demonstrably ineffective.

 

2. Standards on Disinformation and Propaganda:

 

a. General prohibitions on the dissemination of information based on vague and ambiguous ideas, including “false news” or “non-objective information”, are incompatible with international standards for restrictions on freedom of expression, as set out in paragraph 1(a), and should be abolished.

 

b. Criminal defamation laws are unduly restrictive and should be abolished. Civil law rules on liability for false and defamatory statements are legitimate only if defendants are given a full opportunity and fail to prove the truth of those statements and also benefit from other defences, such as fair comment.

 

c. State actors should not make, sponsor, encourage or further disseminate statements which they know or reasonably should know to be false (disinformation) or which demonstrate a reckless disregard for verifiable information (propaganda).

 

d. State actors should, in accordance with their domestic and international legal obligations and their public duties, take care to ensure that they disseminate reliable and trustworthy information, including about matters of public interest, such as the economy, public health, security and the environment.

 

3. Enabling Environment for Freedom of Expression:

 

a. States have a positive obligation to promote a free, independent and diverse communications environment, including media diversity, which is a key means of addressing disinformation and propaganda.

 

b. States should establish a clear regulatory framework for broadcasters which is overseen by a body which is protected against political and commercial interference or pressure and which promotes a free, independent and diverse broadcasting sector.

 

c. States should ensure the presence of strong, independent and adequately resourced public service media, which operate under a clear mandate to serve the overall public interest and to set and maintain high standards of journalism.

 

d. States should put in place other measures to promote media diversity which may include, as warranted by the situation, some or all of the following: i. Providing subsidies or other forms of financial or technical support for the production of diverse, quality media content; ii. Rules prohibiting undue concentration of media ownership; and iii. Rules requiring media outlets to be transparent about their ownership structures.

 

e. States should take measures to promote media and digital literacy, including by covering these topics as part of the regular school curriculum and by engaging with civil society and other stakeholders to raise awareness about these issues.

 

f. States should consider other measures to promote equality, non-discrimination, inter- cultural understanding and other democratic values, including with a view to addressing the negative effects of disinformation and propaganda.

 

4. Intermediaries

 

a. Where intermediaries intend to take action to restrict third party content (such as deletion or moderation) which goes beyond legal requirements, they should adopt clear, pre- determined policies governing those actions. Those policies should be based on objectively justifiable criteria rather than ideological or political goals and should, where possible, be adopted after consultation with their users.

 

b. Intermediaries should take effective measures to ensure that their users can both easily access and understand any policies and practices, including terms of service, they have in place for actions covered by paragraph 4(a), including detailed information about how they are enforced, where relevant by making available clear, concise and easy to understand summaries of or explanatory guides to those policies and practices.

 

c. In taking actions covered by paragraph 4(a), intermediaries should respect minimum due process guarantees including by notifying users promptly when content which they created, uploaded or host may be subject to a content action and giving the user an opportunity to contest that action, subject only to legal or reasonable practical constraints, by scrutinising claims under such policies carefully before taking action and by applying measures consistently.

 

d. The standards outlined in paragraph 4(b) should, subject only to legitimate competitive or operational needs, also be applied to any automated processes (whether algorithmic or otherwise) run by intermediaries for taking action either in relation to third party content or their own content.

 

e. Intermediaries should support the research and development of appropriate technological solutions to disinformation and propaganda which users may apply on a voluntary basis. They should cooperate with initiatives that offer fact-checking services to users and review their advertising models to ensure that they do not adversely impact diversity of opinions and ideas.

 

5. Journalists and Media Outlets

 

a. The media and journalists should, as appropriate, support effective systems of self regulation whether at the level of specific media sectors (such as press complaints bodies) or at the level of individual media outlets (ombudsmen or public editors) which include standards on striving for accuracy in the news, including by offering a right of correction and/or reply to address inaccurate statements in the media.

 

b. Media outlets should consider including critical coverage of disinformation and propaganda as part of their news services in line with their watchdog role in society, particularly during elections and regarding debates on matters of public interest.

 

6. Stakeholders cooperation

 

a. All stakeholders – including intermediaries, media outlets, civil society and academia – should be supported in developing participatory and transparent initiatives for creating a better understanding of the impact of disinformation and propaganda on democracy, freedom of expression, journalism and civic space, as well as appropriate responses to these phenomena.

Elvis

'Long Live the King: The Influence of Elvis Presley on the Right of Publicity in Tennessee' by Annie Christoff in (2011) 41(4) The University of Memphis Law Review 667 comments

Elvis Presley's career is without parallel in the entertainment industry. From his first hit record in 1954 until his death in 1977, he scaled the heights of fame and success that only a few have attained. His twenty-three year career as a recording star, concert entertainer, and motion picture idol brought him international recognition and a devoted following in all parts of the nation and the world.'

In examining the right of publicity, a principle that recognizes an individual's exclusive right to commercially exploit his or her own name and likeness, the laws of three jurisdictions come to the forefront as providing the most influential authority on the doctrine - New York, California, and Tennessee. Given that the right of publicity is commonly associated with and asserted by celebrities, who are most likely to be able to profit from their personalities, the credence given to the treatment of the doctrine in states with high concentrations of the rich and famous, such as New York and California, is not surprising. In terms of sheer numbers of famous citizens, Tennessee is certainly the outlier of the three, even considering the country music Mecca that is Nashville. Upon consideration, however, of those celebrities with the most interest in protecting their images - that is, celebrities with the most distinctive, most recognizable, and most marketable personas - the respect for Tennessee's jurisprudence on the right of publicity becomes imminently understandable, as Tennessee's courts and legislators were entrusted with the protection of perhaps the largest personality of all - Elvis Presley.

In contrast to New York and California, whose law developed from litigation involving many different celebrities, some beloved and others less so, Tennessee's most influential right-of- publicity cases involve the estate of Elvis Presley, resulting in a body of law that sprang from the efforts to protect the rights of one man. This singular purpose led to distinctive protections not previously seen in other states and placed Tennessee on the cutting edge of the advancement of the doctrine. Thus, Tennessee's esteemed jurisprudence on the right of publicity is not simply a historical accident resulting from the fact that Elvis lived in Memphis; rather, the whole of that jurisprudence is derived from a desire to protect the identity of Elvis and his exclusive rights in that identity. In other words, Tennessee's right of publicity was not just developed because of Elvis, it was developed for Elvis. This loyalty of Tennessee jurists and lawmakers is likely due not only to the undeniably immense value of Elvis's persona, but also to his association with the state of Tennessee and, in particular, his adopted hometown of Memphis.

This Article analyzes the development of Tennessee law on the right of publicity and Elvis's influence on that development. Part II traces the origins of the doctrine and highlights the different interests and protections afforded in different jurisdictions. Part III provides a brief overview of Elvis's popularity in popular culture in general and the nation's jurisprudence in particular. Part IV focuses on the cases and statutes that developed and now govern the right of publicity in Tennessee. Part V explains the role that Elvis and his estate played, both directly and indirectly, in the formation of that law and discusses the reasons Elvis was so influential to Tennessee's approach, concluding that the particular brand of the right of publicity recognized in Tennessee is a direct result of the particular personality at issue, with the lasting legacy of Elvis Presley firmly imprinted on the law of this state.

Christoff goes on to comment

The General Assembly enacted the "Personal Rights Protection Act of 1984," which provides that "[e]very individual has a property right in the use of that person's name, photograph, or likeness in any medium in any manner." That the statute creates a property right that continues after the death of the individual and is descendible is made clear in multiple provisions. First, the term "individual" is defined as "human being, living or dead." The statute also reite- rates that the rights created are "property rights" that "are freely assignable and licensable, and do not expire upon the death of the individual so protected, whether or not such rights were commercially exploited by the individual during the individual's lifetime, but shall be descendible to the executors, assigns, heirs, or devisees of the individual so protected by this part." The rights are "exclusive to the individual ... during such individual's lifetime and to the executors, heirs, assigns, or devisees for a period of ten (10) years after the death of the individual." The statute does not actually limit its protection to ten years, however; so long as the assignee of the rights continues to use the individual's name, likeness, or image for commercial purposes, the rights exist in perpetuity. Following the initial ten years of unconditional protection, non-use for a period of two years will result in termination of the exclusive right.' In addition to the General Assembly's efforts to ensure that the right of publicity was not extinguished at death in Tennessee, the Tennessee Court of Appeals confirmed the descendibility of the right under the common law as well.

The imprint of Elvis on Tennessee's law on the right of publicity is undeniable, and there are several reasons for that imprint. First, of course, as discussed above, Elvis was on the courts' minds in defining the right of publicity because Elvis was literally on their dockets. With the sole exception of the Commerce Union Bank case, each of the formative decisions establishing the standard for the right of publicity under Tennessee common law involves a case where the Presley estate, or its assigns, was one of the parties.' It is surely understandable that the courts seeking to determine what rights a celebrity has to the exclusive enjoyment of his persona would be influenced by the very persona they were deciding whether to protect. That singularity of purpose is perhaps also a reason that Tennessee's version of the doctrine is considered so strong when compared to that of other jurisdictions.'

Second, Elvis's involvement in the development of the law appears to have been an intentional tactic employed by his estate. It is no accident, for example, that the Tennessee statute has such a purposeful focus on establishing that the rights created therein are descendible, which would obviously be of benefit to Elvis's estate, as Elvis was already deceased when the law was passed. Known as "Elvis law,"' the statute was sponsored by the Presley estate. Both the estate and Elvis Presley Enterprises have also aggressively pursued litigation to enforce their intellectual property rights, in many instances forcing the courts to forge into new areas of the law with previously imprecise doctrines. "The Estate of Elvis Presley succeeded on both the legal and legislative fronts in garnering rights in the Presley image."

Finally, particularly in the province of judicial decisions, the landscape of Tennessee's law on publicity rights was likely formed with a subconscious intention of protecting Elvis as the jurisdiction's dearest natural resource. As discussed, the theoretical justifications for publicity protection, though numerous, are conceptually suspect. In the absence of a concrete foundational theory, the choices made in drawing the boundaries for the right of publicity doctrine were left to largely provincial concerns; indeed, perhaps it is precisely because there is no strong theoretical basis for the right of publicity that those boundaries are drawn so differently from jurisdiction to jurisdiction. For Tennessee, and Memphis in particular, that concern was protection of Elvis, the favorite son-not just protection of his image, that it remained un- sullied, or protection of the interests of his only heir, Lisa Marie, who was under ten years old when her father died, but also protection of the community's pride in its association with Elvis and the economic advantage to be reaped from that relationship. In other jurisdictions, where the celebrities are more numerous, or less be- loved, or both, those concerns are not as great and the resulting protection not as strong."' As much as Elvis is a product of his environment, so is Tennessee's right of publicity a product of Elvis.

Obscurity, Censorship and Personality Rights

'The Anglo-American / Continental Privacy Divide? How Civilian Personality Rights Can Help Reconceptualize the ‘Right to Be Forgotten’ Towards Greater Transnational Interoperability' by Karen Eltis in (2016) 94 Canadian Bar Review comments

The European Court of Justice’s much maligned decision in Google v Costeja González, appears to compel search engines, to remove links to certain impugned search results at the request of individual Europeans (and potentially by others beyond Europe’s borders). Further complicating an already thorny situation is the court’s failure to impart much-needed practical guidance in Costeja.

What is more, Costeja may inadvertently and ironically have the effect of appointing (chiefly American) ‘data controllers’ as unwitting private censors; arbiters of the European public interest. Indeed, the decision may be deemed a culmination of the growing divergence between Anglo-American and Continental approaches to privacy significantly extending beyond the United States, to the United Kingdom.

It further reflects internal normative contradictions within the continental tradition and emphasizes the urgency of re-conceptualizing digital privacy in a more transystemically viable fashion in Europe and beyond.

In light of the above, informational privacy, the following posits, must ultimately be re-theorized in a manner that would presumably obviate – or at the very least palliate – the need for a stand-alone ill-defined and under-theorized ‘right to be forgotten’, as set out at pains in Costeja. It is in essence a procedural right predicated on the impracticable idea that individuals ‘own’ data, rather than a right to their identity itself and the perception thereof. It therefore fails to accord with the long-established civilian tradition of personality rights, which, unlike its common law counterpart, emphasizes personhood not property. In the end, a more robust construction of privacy predicated on protecting identity would allow for a more nuanced balancing of privacy and freedom of expression.

Pictures

From IDP Education Ltd v Lejburg Pty Ltd [2015] VSC 650 in relation to the Australian Consumer Law -

24 The defendants’ website relied upon testimonials in the nature of ‘success stories’ to promote the sale of dispute packages. As the evidence revealed, they were wholly fabricated. The defendants did not seek to justify or even explain the testimonials, referring to them as their ‘Achilles heel’.

25 A testimonial from Hans Gerda Ulrich was published with a photograph image. A search of the image revealed the photo to be that of Bernd Jurgen Armando Brandes, a victim of murder and cannibalism in Germany in 2001. A testimonial from Gupta Agate was accompanied by his photo image. A search of the internet revealed that the photograph was that of Jayant Maru, a student at the University of London International Programme, studying BSc Sociology and Law. The photograph of Sun Lei, who provided another testimonial, was that of an actor, Song Seung Hun. The photograph of Amee Krishnamurthy appears to be that of another person known as Aparna Krishnamurthy from Bangalore. The photograph of Wang Siwen, who provided a testimonial, appears to be that of Janlyn Kor. The photograph of Wang Wing, who provided a testimonial, appears to be that of a Japanese woman taken by photographer, Cedric Bertrand. The photograph of Gao Wuan, who provided a testimonial, appears to be that of Celestine Lee, who works with MMR Solutions in Singapore in the financial services industry.

Reputation, Privacy and Injury

'Data Protection and the Right to Reputation: Filling the 'Gaps' after the Defamation Act 2013' by David Erdos in (2014) 73(3) Cambridge Law Journal 536-569 argues

Defamation law has historically occupied a position of overwhelming dominance in the vindication of the traditional right to reputation. Nevertheless, liberalisation of this legal framework including through the Defamation Act 2013 has led to a concern that, when analysed from a fundamental rights perspective, “gaps” in the protection provided for natural persons may have emerged. In this new context, there has been a renewed focus on whether data protection may fill the potential lacunae. Data protection law contains a number of important limitations and exceptions and its jurisprudence has been both limited and sometimes confused. Nevertheless, this article argues that its broad purpose and complex structure ensure it will play a significantly augmented role in the future, especially in actions against website operators facilitating the dissemination of information posted by a third party, the publication of opinion, or where either injunctive relief or the correction of inaccurate information is sought (in particular in cases of continuing online disclosure).

In Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674 the Supreme Court of New South Wales has awarded $350,000 to a high school teacher wrongly identified by a newspaper as the teacher involved in the allegations of unlawful sexual misconduct with a number of boys in St Aloysius College.

The Court stated

The defamation greatly damaged Ms Pedavoli's impeccable reputation and caused her immense hurt. She is entitled to a large award of damages and to have the court declare to all the world the falsity of that which has been imputed to her by the newspaper.

The NSWSC rejected the newspaper's defence of offering to make amends for its mistake, because the newspaper failed to include in its apology the versions of the article posted in social media and in a syndicated news group. The Court stated

The only defence relied upon by the defendants is the statutory defence created by s 18 of the Defamation Act 2005 of failure to accept an offer to make amends.

The defence under s 18 is relatively new and has received little judicial consideration. Its operation must be considered in the context of the objects stated in s 3 of the Defamation Act, which are:

"(a) to enact provisions to promote uniform laws of defamation in Australia, and

(b) to ensure that the law of defamation does not place unreasonable limits on freedom of expression and, in particular, on the publication and discussion of matters of public interest and importance, and

(c) to provide effective and fair remedies for persons whose reputations are harmed by the publication of defamatory matter, and

(d) to promote speedy and non-litigious methods of resolving disputes about the publication of defamatory matter."

The defence under s 18 serves those objects (particularly the object of promoting speedy and non-litigious methods of resolving disputes) by creating a powerful incentive for defendants to make amends rather than to fight the cause. The making of a reasonable offer has the potential, one way or the other, to stymy the litigious path to vindication of reputation. If the offer is accepted, the plaintiff cannot pursue proceedings in court: s 17. If the offer is rejected then, provided the requirements of s 18 are satisfied, there is a complete defence, notwithstanding the establishment of an otherwise actionable defamation. Whereas a defendant can apologise, in aid of the defence, with impunity (see s 13(4) and s 20 of the Act), a plaintiff who fails to accept a reasonable offer to make amends risks everything.

In the face of that draconian sanction for failure to accept an offer, it is unsurprising that the Act is quite prescriptive as to its content. Section 15 of the Act provides:

"15 Content of offer to make amends

(1) An offer to make amends:

(a) must be in writing, and

(b) must be readily identifiable as an offer to make amends under this Division, and

(c) if the offer is limited to any particular defamatory imputations-must state that the offer is so limited and particularise the imputations to which the offer is limited, and

(d) must include an offer to publish, or join in publishing, a reasonable correction of the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, and

(e) if material containing the matter has been given to someone else by the publisher or with the publisher's knowledge-must include an offer to take, or join in taking, reasonable steps to tell the other person that the matter is or may be defamatory of the aggrieved person, and

(f) must include an offer to pay the expenses reasonably incurred by the aggrieved person before the offer was made and the expenses reasonably incurred by the aggrieved person in considering the offer, and

(g) may include any other kind of offer, or particulars of any other action taken by the publisher, to redress the harm sustained by the aggrieved person because of the matter in question, including (but not limited to): (i) an offer to publish, or join in publishing, an apology in relation to the matter in question or, if the offer is limited to any particular defamatory imputations, the imputations to which the offer is limited, or (ii) an offer to pay compensation for any economic or non-economic loss of the aggrieved person, or (iii) the particulars of any correction or apology made, or action taken, before the date of the offer.

(2) Without limiting subsection (1)(g)(ii), an offer to pay compensation may comprise or include any one or more of the following:

(a) an offer to pay a stated amount,

(b) an offer to pay an amount to be agreed between the publisher and the aggrieved person,

(c) an offer to pay an amount determined by an arbitrator appointed, or agreed on, by the publisher and the aggrieved person,

(d) an offer to pay an amount determined by a court."

The Court went on to conclude -

In accordance with s 18(1) of the Act, the elements of the defence of failure to accept an offer of amends are:

(a) that the publisher made the offer as soon as practicable after becoming aware that the matter was defamatory, and

(b) that, at any time before the trial the publisher was ready and willing, on acceptance of the offer by the plaintiff, to carry out the terms of the offer, and

(c) that in all the circumstances the offer was reasonable.

The third element presents a challenge for the philosophy of space and time. On its face, s 18(1) appears to require proof that the offer was reasonable in all the circumstances as they existed at the time when the offer was made. However, subs (2) provides a list of considerations (some mandatory, some permissible) for determining whether the offer "is" reasonable. The temporal glitch within the section is apparently not accidental. One of the mandatory considerations is "any correction or apology published before any trial". In terms, that provision would require the court, in determining the reasonableness of an offer, to have regard to a correction or apology published after the plea of failure to accept a reasonable offer had been put on. The section thus entails an element of paradox, requiring the court to make a determination as to circumstances at a fixed point in time with mandatory reference to later events.

It was suggested in the plaintiff's written submissions that the offer was not made as soon as practicable in the present case. However, the evidence established that, during part of the relevant period, the defendants were awaiting a response from the plaintiff's solicitor to correspondence in respect of the offer. Whilst I accept that a defendant must act promptly in making an offer of amends, I do not think the period that passed between publication of the matters complained of and the making of the offer detracted from its reasonableness in the present case.

Ms Pedavoli does not dispute that the defendants were ready and willing, upon acceptance of the offer, to carry out its terms.

Whether the offer was reasonable

The real contest is as to whether, in all the circumstances, the offer was reasonable.

Mr Blackburn addressed that issue by asking, rhetorically, how is the defendants' offer unreasonable?

At the risk of boxing at semantic shadows, I think it is preferable to address the question in the terms posed by the statute, which requires the defendants to prove that in all the circumstances the offer was reasonable.

As already noted, s 18(2) guides the determination of that issue. It is appropriate to set out the full text of the subsection:

"(2) In determining whether an offer to make amends is reasonable, a court:

(a) must have regard to any correction or apology published before any trial arising out of the matter in question, including the extent to which the correction or apology is brought to the attention of the audience of the matter in question taking into account: (i) the prominence given to the correction or apology as published in comparison to the prominence given to the matter in question as published, and (ii) the period that elapses between publication of the matter in question and publication of the correction or apology, and

(b) may have regard to: (i) whether the aggrieved person refused to accept an offer that was limited to any particular defamatory imputations because the aggrieved person did not agree with the publisher about the imputations that the matter in question carried, and (ii) any other matter that the court considers relevant."

The starting point is to consider that for which amends are to be made. The reasonableness of an offer will be critically informed by its capacity to address the hurt and harm done by the publication in question, both as to its seriousness and its extent. The extent to which the defendants' apology was brought to the attention of the audience of the matter complained of is a mandatory consideration which must take into account the prominence given to the apology as published in comparison to the prominence given to the matter complained of: s 18(2)(a)(i).

The reach and prominence of the apology

An important consideration in assessing that issue in the present case is that the matter complained of did not name Ms Pedavoli. Rather, it identified her by the inclusion of a wrong description of the teacher concerned. It follows that her reputation was harmed only among those who read the matter complained of and understood it to refer to her. That undoubtedly complicated the task of making amends. On the one hand, a reasonable correction only had to be brought to the attention of a smaller audience than the whole audience to whom the matter complained of was published. However, in order to be reasonable, the correction had to be calculated in some way to attract the attention of that smaller audience.

Newspaper editors understand as well as anyone the capacity of a headline to draw the attention of the reader. Each of the matters complained of was published under a headline likely to attract the attention of a large number of readers, including many who knew Ms Pedavoli ("female teacher quits top Catholic school after claim of sex with boys"; "Sex with students claims: female teacher quits top Catholic boys school"). The correction was less gripping. It was published under the headline "apology". The headline contained no words to indicate the subject matter of the apology, such as "apology to female teacher at Catholic school" or "correction of article on sex with boys".

Further, the prominence given to the apology was unequal to the prominence given to the matter complained of. It was, in my view, highly unlikely to draw the attention of anything like the audience of the matter complained of. The first matter complained of (as it appeared in the print newspaper) stretched over pages 2 and 3 of the Sydney Morning Herald, on a Friday. In addition to the compelling headline, it was visually stark, appearing under a large photograph (illustrating a different story).

The estimated readership for the newspaper that day was 769,000. For obvious reasons, it is not possible for the defendants to estimate the portion of the readership that read the matter complained of, but the overwhelming likelihood is that many readers opened the newspaper to read page 2.

The online version of the article was first uploaded onto the Sydney Morning Herald website at approximately 8.57 pm on 30 January 2014. It remained online in its defamatory form until it was amended at approximately 8.42am the following morning in response to Ms Pedavoli's approach to her friend who knew an editor. The defendants do not hold information which enables them to distinguish between the estimated viewing or downloading of the article prior to its amendment. In their answers to interrogatories, the defendants provided an estimated number of unique page views of the article, both in its initial form and as subsequently amended (from 31 January 2014 until it was taken down altogether on 13 February 2014). Based on those estimates, the article was downloaded 18,693 times in New South Wales alone before the incorrect information was removed.

Of course, only a subgroup of each audience (print and online) would have identified Ms Pedavoli but, as already explained, the apology was not well aimed to reach those subgroups.

As published, the apology was barely noticeable. On the website, it was available for download via a link at the very bottom of the homepage headed "apology". In the case of the online apology, the absence of any headline such as to invite the attention of readers who had read the matter complained of is all the more significant. The difference between the interest likely to have been generated by the headlines of the matters complained of and the unobtrusive "apology" could scarcely be more stark. In my view, it did not have sufficient prominence to bring it to the likely attention of roughly the same audience, or even a small percentage of the audience who read the matters complained of and understood them to refer to Ms Pedavoli.

Further, there is no evidence that the apology was published to all of the audience of the matter complained of. Even if the apology published in the printed newspaper and online was of sufficient prominence to reach roughly the same audience as the matter complained of in those two forms of publication (which I do not accept), there was no evidence that it was published to the recipients of the tablet app. Mr Blackburn submitted that it was enough that it was published online. He went so far as to suggest (at T209.41) that the onus was on the plaintiff to prove "that what was published in the iPad was different to what the reader would have seen when one went on the computer". He submitted that the fact that the apology was published online was "the end of that issue". I do not accept that submission. There were 9,129 unique page views of the first matter complained of using the tablet app. There is no evidence whatsoever to establish any prospect of the apology having reached that audience. This is an issue on which the defendants bear the onus of proof.

On my analysis of the issue raised by s 15(1)(e), the defendants did not have to offer to publish the apology to the Twitter followers or in The Age. I would nonetheless regard it to be a relevant and significant consideration, in determining whether the offer was reasonable, to determine whether any steps were taken to tell those persons that the matter complained of was defamatory of Ms Pedavoli. Further, for the purposes of s 18(2)(a) (the mandatory requirement to consider any correction or apology published before any trial), it is relevant to determine whether any apology or correction was in fact published to those persons (accepting that there was no express statutory requirement to offer to do so).

No correction was tweeted to the Twitter followers and no step was taken to tell them that the matter complained of was defamatory of Ms Pedavoli. Whatever the correct analysis of the requirements of s 15(1), I consider the fact that there was no relevant tweet whatsoever to be a significant additional reason for reaching the conclusion that the offer was not reasonable.

As to The Age, the position is complicated by a measure of confusion in the evidence. Mr Blackburn submitted that there is no evidence that the matter complained of was downloaded by any person via The Age website. There was evidence of a search conducted by the solicitor for the plaintiff suggesting that a link to the defamatory version of the article was available on The Age website as at 9.52pm on 30 January 2014 (affidavit of Andrea Rejante sworn 3 October 2014, exhibits W and X). Notwithstanding Mr Blackburn's protestations to the contrary, I am satisfied as to the reliability of that evidence. However, unless I have missed something, I think it is correct to say that there was no direct evidence that the article was in fact downloaded via that link or from The Age website by any reader. A conclusion as to publication (downloading) from The Age could only arise as a matter of inference.

The confusion arises from a document tendered by Mr Blackburn, produced on subpoena by The Age (exhibit 2). The document appears to be a screenshot of the non-defamatory version of the article (that is, the version that remained after the incorrect information had been removed) together with the apology, all on the same page. As I understood the purpose of the tender, it was to prove that the apology was published, even though it was denied that the article was published.

With no witness to explain the precise implications of the document, it is difficult to draw any firm conclusion on that issue. It seems likely that the apology was made available for downloading on The Age website in some form at some time, but there was no evidence as to how one would find it or whether anyone did.

In the result, there is no evidence on the strength of which I could be comfortably satisfied as to either the likely audience of the article or the likely audience of the apology on The Age website. I would observe that the complexity surrounding this issue highlights the need for a plaintiff to be told at an early point the identity of all other persons to whom the matter complained of has been given, which is the clear object of s 15(1)(e).

In any event, even leaving aside the position of Twitter and The Age, in my view the measures taken by the defendants were unlikely to bring the apology to the attention of anything near the audience of the matter complained of (by which I mean those to whom the matter was published who understood it to refer to Ms Pedavoli). That is a factor which strongly militates against a finding that the offer was or is reasonable.

For completeness, I should record a submission put by the plaintiff that the offer was not reasonable because it was subjectively insincere and intended not to correct the damage done but to avoid liability. I do not think a basis has been established for drawing that inference.

Other components of the offer

It is of course necessary to consider all of the elements of the offer taken together. The offer included reliance upon the steps that had already been taken at the request of Ms Pedavoli to correct the online version of the article. I accept that that was a prompt and significant step towards making amends.

Offer to pay damages

The offer also included an offer to pay damages in the sum of $50,000. Having regard to the seriousness of the defamatory imputations conveyed by the article, I consider that a monetary payment was essential to achieve a reasonable offer in the present case, even if the apology had been of equal prominence to the matter complained of and carefully targeted to reach roughly the same audience (which I am not persuaded it was). There may be cases in which the publication of a reasonable correction combined with a contrite apology (entailing acceptance of responsibility for the defamation) might obviate the occasion for payment of damages as well, but this is not such a case. The defendants' submissions implicitly acknowledged that, in order to repair the hurt suffered by Ms Pedavoli, some monetary payment was required.

Mr Blackburn submitted that the adequacy of any monetary offer as part of an offer of amends should not be judged by reference to the range of damages the plaintiff would have received at trial. If what was meant was that a reasonable offer does not have to include an offer to pay an amount within the range of a full assessment of damages as if after a trial, that is undoubtedly correct. Apart from anything else, that would overlook the reparation achieved by the mandatory components of the offer, particularly the requirement to publish a reasonable correction. The reasonableness of any monetary offer is necessarily informed by the reasonableness of the correction, including the extent of its reach. To adopt any different approach would subvert the object of the Act of encouraging the non-litigious resolution of defamation disputes. But the seriousness of the defamation undoubtedly remains a relevant factor in assessing the reasonableness of the monetary component of an offer.

I also accept, as submitted by Mr Blackburn, that the Court must be mindful of the fact that the grounds of aggravation now relied upon by the plaintiff were not known to her at the time the offer was made (and hence had not aggravated her damage). However, even at the time the offer was made, the defendants ought to have appreciated that the defamation was such as to cause extreme hurt and distress to Ms Pedavoli.

The seriousness of the defamation could scarcely be any worse. But for the fact that the plaintiff was not named in the article and the prompt correction of the online edition, this defamation would clearly have fallen within the worst class of case. Accepting that the assessment as to the adequacy of the sum offered must be informed by the other components of the offer and the fact that acceptance of it would have made amends and obviated the need for a trial, I do not think the sum offered was enough to bring the whole of the offer, with all its components, up to the mark of being one which could be characterised as reasonable in all the circumstances. That conclusion is based upon both my assessment as to the inadequacy of the correction and apology and my assessment of the seriousness of the imputations (with the extreme hurt they would inevitably have caused).

For those reasons, I am not satisfied that the defence of failure to accept an offer of amends is established.

Archives and memories

Intellectual property students have a short reminder of copyright in letters in the current controversy over correspondence from Jacqueline Kennedy to a Vincentian priest.

Under Australian, UK, US and Irish law the recipient of a letter gains legal ownership of the medium - ink, paper, envelope, stamp (even sealing wax, if you are lucky) - but the author of the letter retains copyright. The recipient can legally read, destroy or sell the medium but typically does not have authority to publish what was written.

Some recipients have sold correspondence at auction or sold a cache of letters to a collecting institution, in some instances for over US$1 million. On occasion they or biographers and other scholars have been restrained from reproducing the correspondence as a whole or from extensive quotation. A much cited example is action by JD Salinger to block quotation of intimate correspondence. Henry James, just as famously, retrieved letters from recipients and burnt them - along with manuscripts of novels and short stories - in a regrettable bonfire in his garden at Rye.

In the US there has been interest in what the New York Times describes as "an unlikely friendship" and "an extraordinary correspondence" in which Jacqueline Bouvier (later Jacqueline Kennedy) "revealed her private thoughts" during courtship and marriage with John F. Kennedy. Her letters were addressed to Vincentian priest Joseph Leonard, whom she met in Ireland in 1950. The published snippets - including characterisation of JFK as consumed with ambition “like Macbeth” - reinforce perceptions that she was more acute than the charismatic, golden-haired and somewhat empty-headed President.

The Times reports that

The letters were uncovered in April at a financially strapped college in Ireland, which had planned to sell them at auction as part of a plan to raise money. But earlier this week, the auction was called off, and on Friday, officials at the college, All Hallows in Dublin, said they had learned that the institution did not own the letters after all, and announced that it was closing its doors.

It seems doubtful that the Kennedy family, which stepped in to object to the auction, even knew of the letters’ existence until excerpts were published earlier this month in newspapers on both sides of the Atlantic. ... Phillip Sheppard, the head of the auction house that planned to conduct the sale, told news outlets that a “private source,” whom he has not identified, had brought the letters forward.

Mr. Sheppard estimated that the letters from the famously private former first lady might fetch as much as $5 million. ... 

On Wednesday, the auction was abruptly called off, and the college said that the Kennedy family had stepped in. A further twist emerged Friday, when the college announced that Father Leonard had bequeathed the letters in a will to his religious order, the Vincentian Fathers. The will, which had been presumed lost, had been discovered in recent days, the college said. ...

Whether the letters will ever become public remains unclear. The revelation of candid thoughts written to a priest, with the likely expectation that they would remain confidential, has roiled an age-old debate over privacy and the obligations of public figures to illuminate the historical record.

'Ae Fond Kiss: A Private Matter?' by Hector Lewis MacQueen in Burrows, Johnston and Zimmermann (eds), Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford University Press, 2013) 473-488 discusses the 1804 case of Cadell & Davies v Stewart, in which the existence of rights to publish or to prevent publication of private letters between poet Robert Burns and his close friend Agnes McLehose was ventilated at length by the advocates and judges. MacQueen assesses the evidence for what really happened between Burns and Agnes, and discusses the contemporary significance of the court's decision to prevent publication.

MacQueen comments

On 16 May 1804, the Court of Session decided to prohibit the continued publication of 25 passionate personal letters written by Robert Burns to “Clarinda”, the love of his life (at least between December 1787 and February 1788, when most of the letters were written). The letters had been published in a slim pocket-sized volume in spring 1802, whereupon proceedings were commenced in November by the holders of Burns’ copyrights and, subsequently, his family. The Court’s decision came even though Burns had been dead for eight years, and his physical relationship with Clarinda, so far as could be told from the letters, had involved only heavy breathing and perhaps, late at night, the occasional fond kiss and cuddle (of which more anon). But Clarinda was still very much alive at the time of the case and living in Edinburgh; she was in possession of the originals of the letters in question; and, averred the publisher of the book, Mr Thomas Stewart, bookseller of Glasgow, she had consented to their publication. 

Not being a party to the case, however, Clarinda (whose real name was Agnes McLehose, and who was usually known to her friends as Nancy) was in no position to deny Stewart's allegation before the court. Nor did she really want to "go public" about her affair with Burns. At the most intense period of their relationship, they were each married to someone else: Burns in his irregular relationship with Jean Armour,4 who had already borne him twins in 1786 and was again pregnant by him back in Ayrshire; Clarinda to a dissolute Glasgow lawyer, James McLehose, from whom, however, she had been estranged and living apart since 1782. In itself this was scandalous by contemporary standards, since quite apart from the disgrace of leaving her husband, how she managed to survive thereafter was unclear unless it was on immoral earnings or with the covert support of a rich lover. … Robert Burns spent the winter of 1787-88 in Edinburgh, where he was seeking to follow up the success of the Kilmarnock edition of his poetry published in 1786, obtain money and patronage, and widen his experience and influence. At the beginning of December 1787 he went to a tea-party and there met the attractive, yet religiose and bookish, Agnes McLehose. Like Burns, she was 28 years old, and lived with her two surviving children and her servant Jenny Clow at General’s Entry just off Potterrow on the south side of Edinburgh – not the best part of town in those days, but not the worst either. 

After the tea-party, Burns and Nancy began a high-flown but increasingly amorous correspondence which lasted for the next three months, addressing each other and signing themselves as "Sylvander" and "Clarinda" respectively. They wrote initially because Burns had managed to fall out of a carriage (possibly due more to the coachman’s than Burns’ consumption of alcohol) and was consequently laid up at home with a dislocated knee, unable to get about on foot or, indeed, at all. So the two communicated via the hourly penny postal service, sometimes also using Jenny Clow as a private courier. The pseudonyms provided at least a fig-leaf of protection for their identities should letters delivered by third hands miscarry in some way. Burns’ womanising reputation was already well established and well justified, so it was a great risk to any female’s good name to be seen alone with him. Email, texting and tweeting, had they existed in the late eighteenth century, would have been useful to the couple, although their words would have had to be fewer and shorter, if not abbreviated. 

When Burns' knee recovered in January 1788, he began paying visits to Nancy late at night in Potterrow as well as continuing to write between visits. Nancy urged him to walk to her house rather than come conspicuously in a sedan chair, or even worse a coach: “A chair is so uncommon a thing in our neighbourhood, it is apt to raise speculation.” But he could go home in a chair, since the neighbours were "all asleep by ten". 

Burns died in Dumfries on 21 July 1796, leaving behind him his wife Jean and their surviving children. Friends and admirers of the dead poet concocted a plan to support the family by publication of all his writings, including his letters. They wanted initially to include in this project Burns' letters to Clarinda, which presumably they knew about because Burns had kept at least some of Clarinda's letters to him. She however refused permission for this, and on her own account asked for the return of the letters she had written to Burns. This was eventually achieved in 1797. Three years later, the first edition of James Currie’s four-volume Works of Robert Burns was published by Cadell and Davies of London (the current members of a long-established and very successful firm of booksellers or publishers, later to be the raisers of the action that came to its culmination in May 180419). The second volume included the full text of a number of Burns’ letters recovered from some of his correspondents, but there was no hint anywhere in the book of his exchanges with Agnes McLehose. … 

Currie’s quasi-apology for publishing private letters in his preface to the second volume is indicative of contemporary attitudes, at least among the letter-writing classes:

It is impossible to dismiss this volume of the correspondence of our Bard, without some anxiety as to the reception it may meet with. The experiment we are making has not often been tried; perhaps on no occasion, has so large a portion of the recent and unpremeditated effusions of a man of genius been committed to the press.

Currie emphasized the fact that the publication was generally with permission from both the family of Burns and those to whom he had written, and also that it had been “found necessary to mutilate many of the individual letters, and sometimes to examine parts of great delicacy - the unbridled effusions of panegyrics and regard",  to make them fit for public viewing. 

Despite, or perhaps because of this, Currie’s book caught the in-coming tsunami of Burns mania. Bardolatry was already manifesting itself, not only in the spread of annual suppers on the anniversary of his birth (the very first was held in the birthplace, Alloway, in January 1797), but also in projects for the creation of monuments around the country. Currie’s Works enjoyed three further editions in 1801, 1802, and 1803, and the book’s immediate success was, as we shall see, an important part of the background to the litigation in 1804. 

While Clarinda might successfully prevent her letters from Burns going into print, she did allow visitors to her house in Edinburgh to see them. She authorised someone called Finlay to quote from Sylvander’s letters when she let him have possession of them for a period. But, as she wrote in 1834, "Besides making this use of the letters, Mr Finlay gave permission to a bookseller to publish all the letters which had been intrusted to him, and added, most falsely, in an advertisement prefixed to them, that this was done with my permission (‘condescension’, as he termed it) ... Nothing could be more contrary to truth."

Meanwhile in Germany it is reported that the Oberlandesgerichte Koblenz (Higher Regional Court of Koblenz) in case reference 3 U 1288/13 has apparently ordered the deletion of intimate photos and videos after a personal relationship came to an end. (Commentary relies on the Court's media release rather than the judgment, which has not yet appeared.)

The defendant and then partner had made a range of images during the relationship; some were intimate (including nude photographs, unsurprising given that the defendant is a professional photographer), others were not. After the relationship ended the partner demanded destruction of both intimate and 'everyday' images in which she appeared. Off to court, after the defendant resisted.

In the District Court the defendant agreed not to publish the images (e.g. place them on the web) or otherwise provide them to third parties. However, he did not agree to delete all electronic images, which we might regard as equivalent to pulling photos of a formerly happy couple out of a personal photo album. So much for the memories.

On appeal the Court appears to have decided that the complainant had some rather than comprehensive personality rights regarding unpublished images. Intimate images were associated with the personal relationship and when that relationship ceased the complainant could accordingly require deletion of those images (presumably by the photographer expunging files from hard drives and cards). That destruction reflects Articles 1(1) and 2(1) of the federal Constitution. The defendant's professional freedom (protected as a human right under Article 12) would not be affected, as the images were made on a personal rather than professional basis.

The 'everyday' images should be treated differently, as exposure would not lower the claimant's reputation in the eyes of third parties. The court noted that it was common practice for the production of still images and video at "celebrations, festivals and on vacation", with people legitimately possessing those images and using them (on a non-commercial basis) in perpetuity.