A Just Balance or Just Imbalance? The Role of Metaphor in Misuse of Private Information

Moosavian, Rebecca (2015) A Just Balance or Just Imbalance? The Role of Metaphor in Misuse of Private Information. Journal of Media Law, 7 (2). pp. 196-224. ISSN 1757-7632

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Abstract

This article undertakes analysis of misuse of private information (MPI) caselaw informed by deconstruction and wider literary and critical theory. It specifically considers the operation of the ‘balance’ metaphor in MPI caselaw: What rhetorical effects might it foster, and how? What insights can the balance metaphor in MPI caselaw reveal about the nature of legal discourse more generally? This article starts by providing an account of select theorists who explore the subtle but vital role that metaphor plays in non-literary texts. Though metaphors have traditionally been viewed as poetic or literary devices, deconstruction indicates that they often exert a hidden influence in the texts of other disciplines such as philosophy and law, with inevitable implications for claims based on truth, objectivity and reason. This account ultimately highlights the fundamental - but often overlooked - role of metaphor in legal discourse. Following this discussion, the article proceeds to investigate the key ‘balance’ metaphor in misuse of private information judgments. It identifies and analyses two distinct ways in which the balance metaphor subtly benefits and supports judicial reasoning in these judgments. First, it creates an impression of certainty by drawing on connotations of the quantifiable and calculable. Second, it fosters the moral appeal of a decision by alluding to notions of justice and equilibrium. In doing so, the balance metaphor marginalises the non-rational, inexpressible, even mysterious, aspects of judicial rights balancing.

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