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The Legal View - Could the Defamation Bill recommendations really be unlawful?

Following much ballyhoo around the Leveson Inquiry and the future of press regulation, the Government's Defamation Bill, including some controversial amends made by Lord Puttnam, will go in front of the House of Lords. Ahead of this, three QCs responded by claiming that the possible recommendations may not be legal. Paul Jonson, partner at Manchester law firm Pannone explains

Paul Jonson

The newspaper industry has commissioned a report from three leading media QCs, Lord Pannick, Desmond Browne and Anthony White, all pre-eminent lawyers in their field. The advice concludes that one of Lord Justice Leveson’s main recommendations to regulate the press is possibly unlawful.

Lord Justice Leveson recommended in his lengthy report on press regulation, published in November 2012, that “exemplary” or “punitive” damages should be available to claimants in breach of privacy cases. Lord Justice Leveson’s theory is that the spectre of large “US style” punitive awards will encourage publishers to voluntarily submit to the proposed new press regulator.

Punitive or exemplary damages are extremely rare in English law. Damages are seen by the English courts as being about compensation and not punishment.

The three QCs consider that Lord Justice Leveson’s proposal may breach Article 10 of the European Convention of Human Rights which concerns freedom of expression. They consider that the proposal to impose exemplary or punitive damages would have a “chilling effect” on free speech and that ministers would be unable to pass legislation incorporating such provision.

However, Hugh Tomlinson QC, Chairman of the Hacked Off campaign believes the warning by the three QCs is “misconceived” as exemplary damages already exist as a remedy and what Mr Justice Leveson is proposing is simply a small extension of the principle.

Whoever is right, the arguments from opposing camps look set to continue.

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