Balancing Privacy Against Free Speech: In Defence of Exposing Hypocrisy

Abstract: This chapter focuses on the judicial balancing of competing privacy and free expression rights in the second stage of the English misuse of private information tort. We defend the stage 2 balancing exercise from accusations that it fails to adequately protect the privacy rights of claimants, with specific focus on the ‘exposing hypocrisy’ principle which justifies publication of information where the public has been misled. We argue that public interest speech that is weighty in Art 10 terms cannot be narrowly restricted to that which pertains to the conduct of democratic politics. Instead, it should be understood in a wider, flexible sense, and this provides an apt basis for the ‘setting the record straight’ or ‘exposing hypocrisy’ principle. We demonstrate that the principle is normatively justified and subject to crucial qualifications. This ensures that the scope and effect of ‘exposing hypocrisy’ is limited and that privacy is not under-protected.