John Hartshorne, ‘The need for an intrusion upon seclusion privacy tort within English law’

Abstract
In the United States, New Zealand and the Canadian province of Ontario, recognition has been afforded to privacy torts remedying intrusions upon seclusion or solitude, and the creation of such a tort has also been recommended by the Australian Law Reform Commission. In England and Wales, recognition has so far only been afforded to a privacy tort remedying misuse of private information. This article considers the current prospects for the recognition of an intrusion upon seclusion tort within English law. It will be suggested that there is less necessity for such recognition following the apparent recent confirmation by the decisions in Gulati v MGN and Vidal-Hall v Google that misuse of private information claims may still be brought where there is no ensuing publication of wrongly acquired private information. Given that intrusions commonly result in the acquisition of private information, it will be suggested that many of the privacy interests protected by the intrusion torts in other jurisdictions may now therefore be protected in English law through a claim for misuse of private information.

John Hartshorne, The need for an intrusion upon seclusion privacy tort within English law, Common Law World Review. Article first published online: November 23, 2017. https://doi.org/10.1177/1473779517739798.

Richard Lewis, ‘Humanity in Tort: Does Personality Affect Personal Injury Litigation?’, University College London, 8 February 2018, 6pm

This lecture examines whether the character of those involved in personal injury litigation affects the outcome of claims. For example, irrespective of the legal rules, does the personality or background of a claimant or defendant influence whether an action succeeds and how much damages are then paid? A rise in the number of claims is noted here as part of a contested ‘compensation culture’ in personal injury. In a demographic analysis, the article identifies who now may be seen as typical claimants and what injuries they suffer. Claims have been gathered in increasing numbers by law firms in response to market pressures encouraging them to process minor injury cases in bulk. The firms have changed their structure and created ‘settlement mills’ where there may be little scope for individuals to affect the routine processing of small claims … (more)

Herring, Fulford, Dunn and Handa, ‘Elbow Room for Best Practice? Montgomery, Patients’ values, and Balanced Decision-Making in Person-Centred Clinical Care’

Abstract
The UK Supreme Court Montgomery judgment marks a decisive shift in the legal test of duty of care in the context of consent to treatment, from the perspective of the clinician (as represented by Bolam rules) to that of the patient. A majority of commentators on Montgomery have focused on the implications of the judgment for disclosure of risk. In this article, we set risk disclosure in context with three further elements of the judgment: benefits, options, and dialogue. These elements, we argue, taken together with risk disclosure, reflect the origins of the Montgomery ruling in a model of consent based on autonomy of patient choice through shared decision-making with their doctor. This model reflects recent developments in both law and medicine and is widely regarded (by the General Medical Council and others) as representing best practice in contemporary person-centred medicine. So understood, we suggest, the shift marked by Montgomery in the basis of duty of care is a shift in underpinning values: it is a shift from the clinician’s interpretation about what would be best for patients to the values of (to what is significant or matters from the perspective of) the particular patient concerned in the decision in question. But the values of the particular patient do not thereby become paramount. The Montgomery test of duty of care requires the values of the particular patient to be balanced alongside the values of a reasonable person in the patient’s position. We illustrate some of the practical challenges arising from the balance of considerations required by Montgomery with examples from surgical care. These examples show the extent to which Montgomery, in mirroring the realities of clinical decision-making, provides elbowroom for best practice in person-centred clinical care.

Jonathan Herring, Kmw Fulford, Michael Dunn, and Ashoki Handa, Elbow Room for Best Practice? Montgomery, Patients’ values, and Balanced Decision-Making in Person-Centred Clinical Care, Medical Law Review, Volume 25, Issue 4, 1 November 2017, Pages 582–603, https://doi.org/10.1093/medlaw/fwx029.

Brian Bix, ‘The Promise and Problems of Universal, General Theories of Contract Law’

Abstract
There are a growing number of general theories of contract law and of other doctrinal areas. These theories are vastly ambitious in their aims. This article explores the nature of these claims, and the motivations for offering such theories, while considering the challenges to success. It is in the nature of theorizing to seek general categories, including doctrinal categories, and to try to discover insights that hold across those categories. However, differences both within a doctrinal area and across legal systems undermine the case for universal and general theories. Also, unjustifiably general theories may distract us from developing properly contextual legal rules, and might even have the unintended effect of legitimating unjust rules.

Brian H Bix, The Promise and Problems of Universal, General Theories of Contract Law, Ratio Juris, Volume 30, Issue 4, December 2017, Pages 391–402.

Emily Laidlaw, ‘Are We Asking Too Much From Defamation Law?’

Introduction
This research paper examines the question of whether we are asking too much of defamation law in a three-part paper focused on reputation, resolution and recommendations. The focus is on online defamation law. However, the kinds of resolution mechanisms explored in this paper potentially have a wider application. The research is couched in a broad internet governance framework, which is the backbone of my scholarly focus, and seeks to test what it would look like if various remedial mechanisms were deployed or incentivized through provincial legislation. The question is whether any such mechanisms improve access to justice or resolution for those who suffer reputational harm from online defamation. In other words, this paper seeks to answer the following question: given the reputational harms suffered in the digital age, what kinds of dispute resolution mechanisms would improve access to justice and resolution to complainants? …

Emily Laidlaw, Are We Asking Too Much From Defamation Law? Reputation Systems, ADR, Industry Regulation and Other Extra-Judicial Possibilities For Protecting Reputation In The Internet Age: Proposal For Reform, commissioned by the Law Commission of Ontario (September 2017).

Journal of European Tort Law – Tort and Climate Change number

Martin Spitzer and Bernhard Burtscher, Liability for Climate Change: Cases, Challenges and Concepts

Philip Sutherland, Obligations to Reduce Emissions: From the Oslo Principles to Enterprises

Jaap Spier, The Oslo Principles and the Enterprises Principles: Legal Strategies to Come to Grips with Climate Change

Monika Hinteregger, Civil Liability and the Challenges of Climate Change: A Functional Analysis

Journal of European Tort Law, Volume 8, Issue 2 (November 2017)

Peter Jaffey, ‘Two Ways to Understand the Common Law’

Abstract
I distinguish between two ways of understanding the effect of a decision as a precedent in the common law, which I refer to as the individual rule approach and the holistic approach. I consider the different versions of the common law that they would be expected to give rise to, which approach is more closely reflected in the practices of the common law, and why the holistic approach is preferable as a method for finding and developing the law in adjudication. I explain why under the holistic approach the common law contains principles as well as rules, and I consider the two approaches in the light of the requirement of the rule of law, and I show how the holistic approach explains a version of the policy/principle distinction.

Peter Jaffey, Two Ways to Understand the Common Law, Jurisprudence, Volume 8, 2017, Issue 3, https://doi.org/10.1080/20403313.2017.1361696.

Felix Maultzsch, ‘Contractual Liability of Online Platform Operators: European Proposals and Established Principles’

Abstract
The contractual responsibility of online platform operators has been subject to an intensive debate in the recent past. While the platform operators usually seek the role of mere intermediaries without considerable liability for the proper performance of the main contracts, there is increasing support for a tightened responsibility of the operators. The ‘Discussion Draft of a Directive on Online Intermediary Platforms’ which was published by a group of European scholars in 2016 can be seen as an important landmark in this debate. The following article will analyse the provisions of this draft on the platform operators’ liability towards the users of the platform. It shall be argued that strict transparency requirements on the role of the platform operators are to be welcomed but that other proposals for a tightened liability based on the idea of economic influence do not accord with established contractual principles which should hold true for the platform economy as well.

Maultzsch, Felix, Contractual Liability of Online Platform Operators: European Proposals and Established Principles (November 20, 2017).

Peter Menell, ‘Economic Analysis of Network Effects and Intellectual Property’

Abstract
The information revolution has brought demand-side effects to the fore of economic activity, business strategy, and intellectual property jurisprudence and policy. Intellectual property doctrines play a central role in harnessing network effects, promoting innovation to overcome excess inertia, and balancing consumer welfare, competition, and innovation. This chapter surveys and integrates the economic, business strategy, and legal literatures relating to network effects and intellectual property. Part I introduces the topic of network effects and provides an overview of this Chapter. Part II describes the functioning of network markets. Part III examines the interplay of business strategy, contract, standard setting organizations, intellectual property, and competition policy. Part IV presents three principles for tailoring intellectual property regimes and competition policy for network technologies. Part V traces the evolution of intellectual property protection for network features of systems and platforms. Part VI discusses the interplay of intellectual property protection and competition policy. Part VII assesses the extent to which intellectual property protection and competition policy align with the normative design principles. Part VIII identifies promising areas for future research.

Menell, Peter S, Economic Analysis of Network Effects and Intellectual Property (November 16, 2017) in Ben Depoorter and Peter S Menell (eds), Research Handbook on the Economics of Intellectual Property Law: Vol I, Theory (2018).