András Koltay and Paul Wragg (eds), Comparative Privacy and Defamation (Edward Elgar, Cheltenham, 2020). 480 pp. ISBN 978-1-78897-058-7

This edited collection is one in a series of ‘Research Handbooks in Comparative Law’ edited by Francesco Parisi and Tom Ginsburg. The aim of the handbooks is to provide academic commentary on various legal topics^[1] using a comparative methodology, with chapters that are both ‘accessible but sophisticated’ from researchers on the international stage.^[2] This collection therefore has a target audience of both law students and academics.

Privacy and defamation law are both torts that are well trod in the literature, and have a countless number of academic articles and monographs devoted to them, even in recent academic history.^[3] Specialist journals such as the Journal of Media Law and generalist journals often find a place for pieces on the torts.^[4] Edited collections have also previously embarked upon discussion of both privacy and defamation – one in particular is Comparative Defamation and Privacy Law (ed Andrew Kenyon) in 2016,^[5] which featured chapters by Phillipson, Moreham, Hughes, Scott and Barendt. It seems fair then to surmise that this handbook did not have an insignificant mountain to climb to differentiate itself from that which came before it.

In drawing this distinction, this collection certainly has broad appeal for the readership at large. In many ways, it can be said to ‘do a bit of everything’; it has a theoretical section, a comparative section on defamation, a similar section on privacy and then data protection, and a final part, which details specific approaches by selected countries (France, Italy, South Africa, Canada and Australia, to name a few). In doing so, it covers multiple angles of scholarship. This is particularly attractive to a student cohort, while also appealing to academics who wish to read around a subject with a view to gleaning new information. It should also be said that this edition comes four years on from Kenyon’s offering; legal strides in the torts of personality have been made in this time, alongside the implementation and development of the General Data Protection Regulation (GDPR) and the Data Protection Act 2018. The impact of COVID-19 is also relevant; this period of change has thrust society ever further into a digital word, making the data protection sub-section within this book increasingly significant.What this book does wellThe collection is comprehensive from the perspective of legal breadth and number of contributors. It has a formidable 27 contributors, over 25 substantive chapters and 470 pages. Seldom are edited collections this large, and the result is a book which can perhaps offer something of interest to anyone who is researching in the area and seeking to push the boundaries of their global knowledge of the torts. In a parallel to the book’s legal breadth, it also offers a diverse range of authors. The list includes individuals who are familiar academics in the field (such as Wragg and Bennett), and yet the list is well-rounded to include chapters from emerging experts who make valuable contributions to the literature (Coe, Mangan). It is heartening to see that the contributor list is academically inclusive, covering those at almost every career stage, from Research Assistants to Professors of Media Law. This only adds to the range of insight and perspective the book provides.What this book does not doDue to the breadth of the collection, it cannot be said that it offers exhaustive insights to the approach of individual countries to the torts. Nor would one think this were to be its goal; it is, after all, a handbook – where thinking starts, not finishes. Rather, it offers a glimpse into specific approaches to defamation and privacy in a number of select jurisdictions, each chapter turning on a narrow issue in particular (presumably, of the author’s choosing).Comments on individual chaptersAs stated above, the collection is unusually large and contains a number of thought-provoking and interesting chapters, and too many to mention individually in a short review. There are, however, some notable contributions. Shimzu’s chapter concerns defamation and privacy law in Japan, charting the origins of the law and how it has been shaped by Western influence, mirroring (in some respects) the actions in the UK and US.^[6] An English tort lawyer will indeed find the list of defences to defamation in Japan familiar – those of truth, publication in the public interest and honest opinion.^[7] There are also parallels in approaches to deciding what is a matter of public interest,^[8] a perennial issue in English jurisprudence. An important point that Shimzu raises is the bias the Japanese action has towards protecting public officials; damages in these cases are particularly high.^[9] A further point of interest in the chapter is the emerging ‘right to be forgotten’ in Japan, confirmed by the Japanese Supreme Court (at least, in theory).^[10]

Ning Yan authors an exceptional chapter on Chinese defamation law.^[11] This is a fascinating overview of the historical and political background that lies behind the PRC’s laws of defamation. To a Western lawyer, the chapter makes chilling reading. Ning Yan discusses the use of criminal libel to suppress criticism of government malpractice and corruption.^[12] These actions can lead to jail terms, and have also been used to censor online activism.^[13] Civil defamation actions are also popular; ‘losing face’ is societally significant and legal costs are low.^[14] Ning Yan paints a bleak and somewhat painful picture of how defamation law can be distorted in the PRC, and observes that judges can be interfered with.^[15] Despite this, the chapter ends on a positive note; many judges are also striving towards a fairer balance between speech and reputation, with some success – when politics is not involved.^[16]

Wragg includes a chapter on antipaternalism,^[17] which offers an explanation of the divergent approaches between US and English defamation and privacy law. The section discusses the difficulties in the English courts’ attempts to rank expression by virtue of the public interest,^[18] and gives interesting insights into the failings of the ‘reasonable expectation of privacy’ test,^[19] while also considering the strengths and weaknesses of the US position. The ultimate conclusion is that there are problems both sides of the pond.^[20] This is not the last time that the American position is discussed, as later in the collection, Sin Park considers the notion of personality rights in the US, Europe and Korea.^[21] This chapter gives an impassioned critique of the European position, and considers the separation of rights to privacy on the one hand, and reputation on the other.^[22] Ardent European privacy advocates may disagree with Sin Park’s rather brutal critique of Google Spain,^[23] but perhaps this is the point – a strength of this collection is its ability to challenge regional positions on privacy through a global lens. Sin Park’s reflections on defamation in Korea are interesting; the chapter discusses the action of defamation by truth, which can be subject to criminal prosecution^[24] (a sobering thought for European critics of free speech absolutism). This Korean action stifles the ability to hold those who are corrupt to account, and in particular, detrimentally impacts the private individual who does not have access to a wealth of legal support or resources.^[25] The action also disincentives publications that would undoubtedly be made in the public interest, despite this operating as a potential defence.^[26]

Other valuable contributions to the collection include (but are not limited to): Moosavian’s discussion of privacy and photography,^[27] Koltay’s chapter concerning online defamation,^[28] Coe’s discussion of corporate reputation in the UK and Australia^[29] and Bennett’s chapter on privacy theory.^[30]Final thoughtsWhat sets this collection apart from its academic predecessors is its ability to challenge a Western-centric view of the personality torts, and how such discourse dominates the literature in this area. As so much has been written on AngloAmerican privacy and reputation rights, it is easy to remain ignorant of important developments and hardships in this area of law in other parts of the world – particularly the East. One cannot be a ‘rounded’ expert on defamation and privacy without at least being aware of how the actions can be used and mis-used in different jurisdictions, in a way which stifles legitimate and important expression.^[31] As Sin Park states of Korea, ‘the danger that a truth defamation law poses to human civilisation does not require many words to explain.’^[32] As such, this book makes a valuable contribution to the literature, and will find a place on many a tort lawyer’s bookshelf.