Free Speech, Confusion and the Marketplace of Ideas

This project was run by Graeme Dinwoodie and Jacob Rowbottom, funded by an Oxford Faculty of Law - Melbourne Law School Research Partnership grant, from January 2014 to December 2015

This is a project run in collaboration with Megan Richardson and Andrew Kenyon of the Melbourne Law School, under the Oxford Law Faculty - Melbourne Law School Research Partnerships scheme, funded by Allan Myers QC.

A standard rationale for free speech is that truth will emerge through the ‘marketplace of ideas’, a rationale that some have associated with the 19th century liberal-utilitarian philosopher JS Mill but is also explicitly stated by Holmes J in Abrams v US (1919). Given this rationale, it is puzzling to observe how much truth-endangering confusion is tolerated in areas of media and communications law.

Consider, for instance, defamation law, trade mark law and the law of passing off. These areas of law are supposedly concerned with confusion (at least as indicators of legally cognizable harms). But in fact they delineate their scope for controlling confusion far from comprehensively, using tests such as the ‘ordinary reasonable’ person or average consumer to determine just whose confusion the law should seek to address (so persons whose conclusions are deemed ‘farfetched and fanciful’ appear to be left out of account under these standard tests). Further they erect a range of thresholds and defences that apply notwithstanding the likelihood that the communication will lead to confusion and even in the face of evidence of actual confusion (for instance the ‘actual malice’ standard for public figures in US defamation law and the ‘public interest’ defence under the 2013 UK defamation statute; the ‘use as a trade mark’ threshold in Australian trade mark law and the ‘fair use’ defence to trade mark infringement in the US and the UK).

This project funding, enables us to interrogate closely the multiple ways in which Anglo-Australian as well as American media and communications law allows for confusion, the marketplace of ideas rationale notwithstanding – and also to consider the possible reasons for this divergence as well as some possible reforms.