Deconstructing ‘Public Interest’ in the Article 8 vs Article 10 Balancing Exercise

Misuse of private information (MPI) governs media privacy disputes in English law. The second stage of this doctrine involves a balancing exercise conducted between a claimant’s Article 8 privacy right and a defendant’s Article 10 right to free expression. Though the starting point is that both rights are of equal value, the balancing process entails an inevitable privileging of one right over the other (albeit tailored to the specific facts of each case). This article focuses on this privileging process and explores the principles that determine which right will prevail in any given case. It applies the analytical technique of deconstruction propounded by Derrida as employed by American critical lawyers. This technique involves identifying binary oppositions, ascertaining the dominant concept and reversing the given hierarchies to reveal their mutual dependence and any potential underlying subjectivities. Deconstructing MPI case law reveals that the balancing of Arts 8 & 10 is underpinned by a fundamental dichotomy, that of the ‘public interest versus interesting the public’. This underlying dichotomy is subjected to deconstructive analysis, revealing valuable insights into how these terms are deployed for rhetorical purposes by the various parties in MPI disputes, and the tensions between liberal ideals and commercial realities that permeate case law.