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| Tory and Leveson plans for exemplary privacy damages 'may be unlawful' | Tory and Leveson plans for exemplary privacy damages 'may be unlawful' |
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| Proposals to punish newspapers with huge fines for breaches of privacy and for libel if they do not join the new press regulator are unlawful, three leading lawyers have warned. | Proposals to punish newspapers with huge fines for breaches of privacy and for libel if they do not join the new press regulator are unlawful, three leading lawyers have warned. |
| Three leading QCs, Lord Pannick, Desmond Browne and Antony White, have said that separate proposals from the Conservative party and Lord Justice Leveson to use the threat of big fines to encourage newspapers to join a new self-regulatory body are "inconsistent with authority", incompatible with article 10 of the European Convention on Human Rights and "objectionable in principle". | |
| In a 10-page analysis, commissioned by the newspaper industry, they said the proposals "single out for punishment a particular category of defendant", the press, "rather than a particular kind of conduct" that is objectionable. | In a 10-page analysis, commissioned by the newspaper industry, they said the proposals "single out for punishment a particular category of defendant", the press, "rather than a particular kind of conduct" that is objectionable. |
| "To punish the press for what others may do without punishment is inconsistent with the special importance that both domestic and Strasbourg jurisprudence attaches to freedom of the press," they add. | "To punish the press for what others may do without punishment is inconsistent with the special importance that both domestic and Strasbourg jurisprudence attaches to freedom of the press," they add. |
| The Leveson report recommends that "exemplary damages (whether so described or renamed as punitive damages) should be available for actions for breach of privacy, breach of confidence and similar media torts, as well as for libel and slander". | The Leveson report recommends that "exemplary damages (whether so described or renamed as punitive damages) should be available for actions for breach of privacy, breach of confidence and similar media torts, as well as for libel and slander". |
| Pannick, Browne and White, however, point out that the Leveson recommendations are based on an "out of date" Law Commission report that was written in 1997, before the Human Rights Act of 1998, which enshrines the individual's right to freedom of expression in law. | Pannick, Browne and White, however, point out that the Leveson recommendations are based on an "out of date" Law Commission report that was written in 1997, before the Human Rights Act of 1998, which enshrines the individual's right to freedom of expression in law. |
| The lawyers said the incompatibility between provisions for exemplary damages and the Human Rights Act is "so striking that no minister of the crown" would be able to get it on to the statute books. Browne and White are considered expert media lawyers, as is Pannick, who over the years has established himself as one of the leading barristers to hire for judicial reviews. | The lawyers said the incompatibility between provisions for exemplary damages and the Human Rights Act is "so striking that no minister of the crown" would be able to get it on to the statute books. Browne and White are considered expert media lawyers, as is Pannick, who over the years has established himself as one of the leading barristers to hire for judicial reviews. |
| The legal opinion of the three lawyers comes weeks after Lord Lester made similarly trenchant criticism of Leveson's recommendations on exemplary damages. | The legal opinion of the three lawyers comes weeks after Lord Lester made similarly trenchant criticism of Leveson's recommendations on exemplary damages. |
| Awarding exemplary damages for breaches of privacy by the press would be wrong in principle and could lead to the overnight closure of local newspapers and magazines such as Private Eye, he warned in a House of Lords debate last month about the Leveson report on the future of press regulation. | Awarding exemplary damages for breaches of privacy by the press would be wrong in principle and could lead to the overnight closure of local newspapers and magazines such as Private Eye, he warned in a House of Lords debate last month about the Leveson report on the future of press regulation. |
| The Liberal Democrat peer criticised Leveson for ignoring repeated rejections of proposals for exemplary damages by successive Labour governments and by Mr Justice Eady, a high court judge. Eady awarded £60,000 in a landmark privacy case brought by former Formula One boss Max Mosley against the News of the World, but stopped short of exemplary damages. | The Liberal Democrat peer criticised Leveson for ignoring repeated rejections of proposals for exemplary damages by successive Labour governments and by Mr Justice Eady, a high court judge. Eady awarded £60,000 in a landmark privacy case brought by former Formula One boss Max Mosley against the News of the World, but stopped short of exemplary damages. |
| Pannick, Browne and White also use Eady's Mosley judgment to outline the existing legal authority on the matter. | Pannick, Browne and White also use Eady's Mosley judgment to outline the existing legal authority on the matter. |
| In rejecting exemplary damages, Eady said: "They bring the notion of punishment into civil litigation when damages are usually supposed to be about compensation." He also said that exemplary damages could not be justified under article 10 of the convention. | In rejecting exemplary damages, Eady said: "They bring the notion of punishment into civil litigation when damages are usually supposed to be about compensation." He also said that exemplary damages could not be justified under article 10 of the convention. |
| "I was not satisfied that English law requires, in addition to the availability of compensatory damages and injunctive relief, that the media should also be exposed to the somewhat unpredictable risk of being 'fined' on a quasi-criminal basis. There is no 'pressing social need' for this. The 'chilling effect' would be obvious," Eady said in his judgment. | "I was not satisfied that English law requires, in addition to the availability of compensatory damages and injunctive relief, that the media should also be exposed to the somewhat unpredictable risk of being 'fined' on a quasi-criminal basis. There is no 'pressing social need' for this. The 'chilling effect' would be obvious," Eady said in his judgment. |
| Pannick, Browne and White also said that the exemplary damage provisions could impact on bloggers, non-government organisations and anyone uploading content – photos or reports – that might be libellous or a breach of privacy outside the UK's jurisdiction if it were simply available to download in this country. | Pannick, Browne and White also said that the exemplary damage provisions could impact on bloggers, non-government organisations and anyone uploading content – photos or reports – that might be libellous or a breach of privacy outside the UK's jurisdiction if it were simply available to download in this country. |
| Their opinion, which was delivered to newspapers last month, comes as the government prepares to block amendments to the defamation bill that would put newspapers at risk of having to pay exemplary damages if they failed to give subjects of a story prior notification that they intended to publish. | Their opinion, which was delivered to newspapers last month, comes as the government prepares to block amendments to the defamation bill that would put newspapers at risk of having to pay exemplary damages if they failed to give subjects of a story prior notification that they intended to publish. |
| Mosley had argued during his evidence to the Leveson inquiry last year that this should be compulsory for newspapers because it is so difficult to undo the damage of a story that contains libel or breaches of privacy after it has been published. | Mosley had argued during his evidence to the Leveson inquiry last year that this should be compulsory for newspapers because it is so difficult to undo the damage of a story that contains libel or breaches of privacy after it has been published. |
| He was not notified by the News of the World that it was going to run the story that prompted his successful privacy action and said he had spent millions trying to get copies of the story removed from the internet outside the UK. | He was not notified by the News of the World that it was going to run the story that prompted his successful privacy action and said he had spent millions trying to get copies of the story removed from the internet outside the UK. |
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