Jigsaws and curiosities: the unintended consequences of misuse of private information injunctions

摘要

As the claimant in the recent Supreme Court case of PJS v News Group might ruefully agree, actions have consequences; some intended, some not. These latter unintended consequences are the concern of this article. Interest in unintended consequences can be traced to an influential article by Merton in the 1930s. Here Merton made two claims with which judges in misuse of private information (MPI) cases are undoubtedly familiar. First, the rationality of a particular purposive action does not necessarily guarantee the success of its outcome. Second, correctly anticipating the consequences of any given action will be hindered by inherent limitations in human knowledge, the limitations of prediction itself and the tendency to overlook remoter or less immediate consequences of a given act. Though Merton's observations did not apply to law specifically, they are highly pertinent to law as a rule-based form of 'purposive social action' used to regulate and effect social change. Recognition of the limits of laws to successfully fulfil this function, and its tendency to produce unintended results is by no means new. In The Republic, Plato said of legislators: