Informational Public Interest
The delineation of the “public interest” concept has sparked impassioned debates across various academic disciplines. In law, “public interest” has also been frequently invoked by judges and policymakers as a token of the highest, overarching principle to indicate the moral rightfulness of their decisions. In information law, “public interest” has been interpreted in divergent ways. For instance, in traditional media law, courts treat the “public interest” as an objective concept, wherein the public interest is equated with the “newsworthiness” of the content. In copyright law, “public interest” is used as a comparative notion, balancing public access to information against the need to incentivize the intellectual creation of authors. Telecommunications law and digital platform law embrace a hybrid definition: The public interest is, as a procedural concept, the facilitation of information transmission and, as an economic concept, the invigoration of market competition. Data law also adopts a comparative version to weigh the interest in the free flow of information against the interest in data security and privacy.
However, such fragmented readings of the public interest will lead to conflicts when these fields converge. Unconscious of this complexity, decision-makers have adjudicated cases and developed rules with inevitably high uncertainty and instability. To address these tensions, this Article introduces a novel understanding of the public interest—the Economically Conceptualized Informational Public Interest (“ECIPI”)—as a higher governing principle to mitigate the derived conflicts and calibrate different fields of information law. This Article argues that when conflicts occur, the best way to promote the informational public interest is to enable maximally diverse information to compete in a free market, where information consumers can access and accept information of any desired quality at relatively lower costs. Linking ECIPI to consumer welfare theory, this Article delineates three parameters of ECIPI and clarifies its relationship with other relevant doctrines and theories. Ultimately, this Article establishes a framework based on ECIPI to reconcile different fields of information law, aiming to create a higher degree of harmony and consistency in judicial rulings and policy decisions.
Author: Jiawei Zhang
Volume 26, Issue 1