Distributive Justice

Distributive justice is a mechanism that seeks to achieve a fair distribution of burdens and benefits among the members of society. 410 _{It is based upon geometric norms and seeks}

to proportionally allocate goods among members of society. 411 _{This distribution is grounded}

within Aristotelian notions of utilizing mathematical proportions to justly determine distribution outcomes. 412 _{Distributive justice, therefore, depends on three generic issues: to}

whom is justice owed, what are matters of distribution, and the patterns of distribution. 413

This study is concerned with adopting a progressive approach to tort law in order to redistribute the benefits and burdens between the advantaged and disadvantaged members in society. In order to examine the reasonableness of a given activity, the distributive justice offers crucial insights via the factors of fairness and loss spreading. The behaviour/activity could be categorised as reasonable if it would achieve a fair distribution of benefits and costs among the participants.

409 _{Edelman (n 405) 246.}

410 _{Keren Paz, (n 45) 5; Jeremy Waldron, ‘The Primacy of Justice’ [2003] 9 CUP 269,278; Dennis McKerlie,’}

Aristotle's Theory of Justice’ [2001] The Southern Journal of Philosophy, 119.

411 _{Benjamin C. Zipursky, ‘Philosophy of Tort Law’ in Martin P. Golding and William A. Edmundson (eds)}

Philosophy of Law and Legal Theory (Blackwell Publishing Ltd 2005) 133.

412 _{Aristotle, The Nicomachean Ethics (Oxford U P 1998) 113 cited in Michael Da Silva ‘Formalising formalism:}

Weinrib, Aristotle, and the nature of private law’ (2018) 9 Jurisprudence, 486, 492.

413 _{John Rawls, A theory of justice (Cambridge 1971); Keren-Paz, (n 45) 7; Peter Vallentyne, distributive justice in}

Robert E. Goodin, Philip Pettit & Thomas Pogge (eds) A Companion to contemporary political philiosophy (2nd

edn, Blackwell Publishing 2012) 550-1; Nancy Fraser, Justice Interruptus: Critical Reflections on the Postsocialist Condition (New York 1996) 13.

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Fairness

The fairness imposes, as Gregory C. Keating argues, that the participants, who stand to benefit froma given activity, should equally bear its potential costs and risks. 414 _Fairness

requires the relocation or rearrangement of the burdens relating to advantageous activities onto those who reap the benefits of such activities for several reasons. 415 _{Firstly, it is}

inequitable for actors to reap the advantages of valuable activities and leave their burdens to be borne by strangers unrelated to that activity. Secondly, it is also categorically unjust to divide participants into burden-enduring participants and benefits-enjoying participants. Finally, it is unfair to concentrate the costs of a mutually valuable activity onto a specific handful of participants while the advantages of such activity are publicly shared and widely spread. Fairness, therefore, demands a reciprocity between enjoying the benefits and bearing the costs of a given activity. 416 _{Using this logic, that under a fairness rationale it would be}

deemed outrageously unfair to require those victims who gain no benefits from a specific activity to bear its burdens (costs). 417 _{The potential application of the defamation defence of}

publication on matter of public interest may require scrutinization of the benefits and the costs relating to the publication of private and defamatory information in order to determine whether the defendant’s belief was reasonable.

Loss spreading

The idea of loss spreading,as a goal of tort law, focuses on reducing the impact of accident losses on bearers rather than simply reducing the size of the losses themselves. 418

414 _{Gregory C. Keating, ‘Distributive and Corrective Justice in the Tort Law of Accidents’ (2000) 74 CAL. LAW REV.}

193, 195; Keren-Paz, (n 45) 90.

415 _{Keating, Ibid. 196.}

416 _{Tsachi Keren-Paz, Sex Trafficking: A Private Law Response (Routledge 2013) 109.} 417 _{Ibid. 110.}

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Imposing liabilities upon a defendant adequately capable to bear and pay damages to the harmed party and thereby spreading such damages on other bearers was considered as the goal of compensation and loss spreading. A prime example of this includes the bearing of losses, through revenue-collection, by taxpayers in the case of damages being paid by a governmental agent following a tortious claim. 419 _{Tsachi Keren-Paz argues that the loss-}

spreading mechanism, from an egalitarian perspective, might be a preferable criterion to assess the reasonableness of the behaviour if the disutility is scaled down from a significant unexpected loss to a predictable loss. 420 _{The morality of loss spreading is grounded within}

‘meeting the needs of individuals and seeing a reduction in the negative effects of losses as worthy goals’. 421 _{This distributive notion may help to determine whether it is reasonable to}

exempt the media from liability of invading others’ privacy right by virtue of POMOPI defence which may consequently and unjustifiably, as this thesis argues, impose the costs of harmful activities caused by the media, who reap their benefits, on the shoulders of the victims of such publications.

3. 4: Concluding remarks

This Chapter has mapped the overlap between defamation and privacy, and the theoretical framework which provides the lens through which this study’s research questions will be examined. This Chapter has introduced the conceptual foundations of dignity, sociality, and general personality right accounts that in turn conceptualise the relationship between the interests of reputation and privacy in order to explain the overlap between defamation and privacy in English law. This is important to evaluate the recent judicial approaches to

419 _{Michael L. Wells, ‘The Past and Future of Constitutional Torts: From Statutory Interpretation to Common Law}

Rules’ (1986) 19 Conn. L. Rev. 53, 70.

420 _{Keren-Paz, (n 45) 89.} 421 _Ibid.

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applying defamation rules within privacy cases which involve reputational considerations. In order to provide a further conceptualisation of the overlap, this Chapter has also discussed the relationship between privacy and reputation in Strasbourg’s jurisprudence. This consequently brings to light the crux of the quandary within English law relating to False privacy (false private information). This Chapter has thus identified and explained how privacy could indirectly be protected under defamation law and how reputation may concurrently be protected under MOPI. This Chapter has also introduced the framework used to analyse the impact of the overlap upon defences, interim injunctions and damages. It has provided an overview of various perspectives. These include coherence lens; economic analysis (efficiency); feminist analysis; access to justice; procedural rule of election; and distributive justice perspectives. The chapter explicates how each of these lenses could benefit, enrich and promote understanding the considerations at stake resulting from the overlap between defamation and privacy. In summary, this chapter has provided a greater understanding of the problems resulting from the English courts’ decision to include false private information within the protective scope of MOPI. The concept of the overlap between defamation and privacy, as this thesis concludes, is beyond the mere set of facts which may allow the claimants to bring simultaneously the legal proceedings of defamation and privacy torts. It is, above all else, a matter of conceptual interaction between the private life and reputation, which represent the protected interests of such torts. Based on the accounts of dignity, sociality and personality right, the right to privacy could be truly undermined by the adversely external evaluations of others. The reputation, based on the esteem held by others, may also be undermined by the unauthorised publications of private information. The interwinding relationship between the private life and reputation may lead the publication of private information or defamatory information to inextricably cause dual effects on privacy and

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reputation. The development of English torts of defamation and privacy (MOPI) may provide a practical evidence confirming the conceptual overlap between the interests of private life and reputation, which may be protected under each single tort. However, the overlap was not narrowed on a conceptual level, but it attains, as this chapter elucidates, a materialistic level when the falsehoods, if private, could be protected under MOPI action. This development triggers a controversy among scholars because it would undermine, as certain scholars argue, the coherence of legal system and increase the uncertainty and circumvention of certain legal rules in defamation law. These arguments and the counterarguments, advanced in this thesis, are critically examined and developed in the next chapter.

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Chapter 4: False privacy: Avoidance of the overlap or Keeping the integrity of privacy law