Data Associations and the Protection of Reputation
Daniel Joyce is a Lecturer in the Faculty of Law at UNSW Australia, having previously worked as a solicitor for the Office of the Director of Public Prosecutions in NSW and volunteered for human rights NGOs. Daniel is a graduate of the ANU (BA (Hons), LLB (Hons)) and the University of Cambridge (LLM, PhD); at Cambridge, he was the Whewell Scholar in international law and a Senior Rouse Ball Student at Trinity College. Daniel later undertook postdoctoral research as the Erik Castrén Fellow in international law and human rights at the University of Helsinki, where he remains an Affiliated Research Fellow. His main research and teaching interests are in international law and in media law - specifically the development of international media law and the mediatization of international law. He also continues to research and publish in human rights and international legal theory. He is especially interested in the connections between media and human rights and in the digital rights movement. He is working on a longer term project with Dr Jessie Hohmann of Queen Mary, London on 'International Law's Objects'. Daniel has been a visiting research fellow at the Lauterpacht Centre for International Law at the University of Cambridge and at Columbia Law School and is a Laureate of the Junior Faculty Forum for International Law in 2014. Daniel is admitted and practises as a barrister in New South Wales. Daniel is the author (with David Rolph, Matt Vitins and Judith Bannister) of Media Law: Cases, Materials and Commentary, Second Edition (Oxford University Press, Forthcoming 2015). Recent articles include ‘Media Witnesses: Human Rights in an Age of Digital Media’ (2013) 8 Intercultural Human Rights Law Review 232.
Defamation law seeks to protect reputation, and to balance that interest with freedom of expression. Defamation law in Australia has traditionally cast a wide net in terms of the elements of its cause of action: publication, identification and defamatory meaning. In recent years cases involving online defamation have reached the courts. There is widespread public uncertainty about the potential risks in terms of liability for defamation in digital media contexts. But the answer from the courts appears to be fairly clear - online publication will generally be treated in similar fashion to traditional forms of publication. On face value this seems to be uncontroversial if as yet not more widely understood. What is more contentious is the question of who, if anyone, should bear the responsibility for digital forms of defamatory publication which result not from an individual author’s activity online, but rather from algorithmic associations – most commonly in the form of a search engine result or hit.
This paper seeks to analyse the case law on this question and the literature which has emerged. Rather than focusing on the question of whether online publication is publication, or on associated questions regarding jurisdiction and private international law, I will focus on the challenge posed by defamatory data associations to underlying rationales for the protection of reputation. Defamation law is said to be grounded in a variety of rationales – from honour to dignity to sociality. Does the case of defamatory data associations further unsettle these rationales, or provide a new way of thinking about the protection of reputation and the traditional principles of defamation law? Is automaticity a conceptual hurdle for defamation law, and does it herald the need for thinking differently about how we protect reputation and why we choose to do so?