The debate over how to reform Britain’s unruly national press is likely to become even more heated following a report this week by three leading lawyers warning that proposals to coax newspapers to sign up to a new form of self-regulation by exempting them from the threat of punitive court damages may be illegal.
Last year’s inquiry into press standards by Lord Justice Brian Leveson said rich but reckless tabloid newspapers should be punished with huge fines for breaches of privacy and for libel if they do not join the new press regulator.
But this carefully crafted risks and rewards strategy is in danger of unraveling. As it stands it could breach article 10 of the European Convention on Human Rights, the cornerstone of defence of press freedom in Europe, say the lawyers.
In their report commissioned by the UK newspaper industry, they warn that Leveson’s plan is “out of date” because it is based upon a Law Commission report issued before the Human Rights Act of 1998, which provides legal protection to the individual’s right to freedom of expression.
They say rewarding press people with special treatment in court will also conflict with both domestic and case law of the European Court of Human Rights in Strasbourg which provide wider defence for free speech by journalists and others, including bloggers.
Others have already warned that singling out media for special legal treatment if they refuse to sign up to a new regulator would be counter-productive. It could put some of Britain’s more ethical media in the firing line, such as the satirical magazine Private Eye, Britain’s most consistent and effective critic of establishment hypocrisy which for decades has been a thorn in the side of the country’s press and political elite. The magazine has so far refused to sign up to any system of regulation dominated by the press owners.
This was a point also made by Liberal Democrat peer Lord Lester in a House of Lords Debate on Leveson in January. He described exemplary damages as a “draconian remedy” which would be “wrong in principle and a violation of free speech“.
In particular, he said Leveson has ignored repeated rejections of proposals for exemplary damages by successive Labour governments and by a high court judge who awarded £60,000 damages in a landmark privacy case brought by former Formula One boss Max Mosley against the defunct News of the World. The judge stopped short of awarding exemplary damages and explained he did so because he felt it would be contrary to European Human Rights law.
However, supporters of Leveson’s vision for press regulation remain defiant. They say his lordship is attempting to provide a compromise designed to protect both freedom of expression and privacy.
Another leading lawyer, this time representing the victims of phone-hacking and egregious mischief by tabloid newspapers, challenges the critics and says Leveson’s plan is no threat to free speech.
The point of exemplary damages he says is to deter the media from outrageous disregard of peoples’ rights for commercial profit. This, he says might be thought to be “an entirely proper objective.”
In his report, Leveson recommends that “exemplary damages…should be available for actions for breach of privacy, breach of confidence and similar media torts, as well as for libel and slander”.
Leveson accepts the arguments of the press that a system of statutory regulation should not be imposed on them and has offered them the almost unique privilege of self-regulation – subject only to oversight of a regulator underpinned by law.
And supporters of exemplary damages say they are well established in many legal systems and are an effective deterrent in the face of extreme and outrageous behaviour. They are applied, at present, to punish oppressive, arbitrary or unconstitutional action by government or representatives of the state.
Leveson puts a compelling argument to extend these damages to the worst cases of press abuse. On page 1512 of his extensive report he explains how rich publishers do their sums and feel they have no reason to change their behaviour.
He says: “The commercial benefit from publishing material obtained in breach of right to privacy or confidence is likely greatly to exceed the basic award of damages … and constitutes no real deterrent.”
In other words, newspaper owners with deep pockets can live with court decisions that go against them because they can afford to sustain the damages without denting their profits. Introducing exemplary damages will, he says, force them to think twice before they play fast and loose with the truth and with people’s rights.