Plans to punish newspapers with exemplary damages are unlawful, say top QCs

Plans to impose exemplary libel and privacy damages against newspapers that refused to sign up to the new press regulator are incompatible with human rights law, top lawyers have claimed.

That is the joint opinion of three of the UK’s leading QCs commissioned by the newspaper industry, who concluded the measure – recommended by Lord Justice Leveson in last November’s report – would violate Article 10 of the European Convention on Human Rights protecting freedom of expression.

According to The Times (£), the QCs concluded that “no minister would be able to endorse the plans with a declaration that they were compatible with human rights law”.

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The recommendation is also included the Conservative Party’s draft Royal Charter and in plans for a new arbitration scheme that have been tagged on to the Defamation Bill.

The lawyers — Lord Pannick, Desmond Browne and Antony White — say the proposals for exemplary damages are inconsistent with legal authorities and incompatible with Article 10.

They are “objectionable in principle due to their arbitrary extension of what is widely regarded as an anomalous feature of English law”.

The Times reports:

The opinion also says that the “incompatibility” of the proposals with Article 10 is so “striking” that no minister would be able to state, as is required under the Human Rights Act, that the draft Bill was compatible with that Act.

The opinion also says that the proposals single out a particular category of defendant, rather than a particular kind of conduct. “To punish the press for what others may do without punishment is inconsistent with the special importance that domestic and Strasbourg jurisprudence attach to freedom of the press.”

The proposals would also bite on individual bloggers, non-governmental organisations and “indeed anybody uploading . . . information on to the internet that could be downloaded and read in this jurisdiction”. They add: “The chilling effect of this on free speech is obvious and unjustifiable.”

They add that the recommendation was based on “an out-of-date Law Commission report” prepared before the Human Rights Act 1998 took effect.





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