Leading media lawyers have told Press Gazette that the central plank of the Government’s proposed statute-backed press regulator may breach European law.
Four legal experts have said they believe that the threat of exemplary damages would not stand up to a challenge under the Article 10 right to freedom of expression enshrined in European law and the Human Rights Act.
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Under an amendment to the Crime and Courts Bill passed by the Commons last Monday, publishers of “news-related material” would be protected from the threat of exemplary damages in civil trials provided that they are a member of the industry regulator set out in the Royal Charter.
In a second, potentially more costly, section of the amendment, publishers who are not members of the new regulator will become automatically liable for costs in civil actions which could have been settled by arbitration.
The legislation is being debated in the House of Lords today and Telegraph executive director Lord Black of Brentwood is expected to argue against the exemplary damages amendment. Meanwhile, Lord Lucas has tabled an amendment which would exempt regional publishers and small blogs from the exemplary damages threat.
As currently tabled, publishers would only be subject to exemplary damages if that had shown "deliberate or reckless disregard of an outrageous nature for the claimant's rights".
Media lawyer Caroline Kean of Wiggin said she believed the legislation was “smoke and mirrors” and that publishers would have little to lose by disregarding the exemplary damages amendment (as it stands).
“Responsible publishers would be very unlikely to face exemplary damages anyway, and irresponsible ones will probably base themselves offshore outside this jurisdiction anyway,” she told Press Gazette.
“This is like trying to hold water in a colander – it doesn’t work because you can’t licence journalists.”
Kean added: “You’d have to be a totally irresponsible publisher to have exemplary damages awarded.”
Another experienced UK media lawyer, Julian Pike from Farrer, said it was “a very high threshold, and close to impossible to achieve in nearly all cases”.
Co-author of MacNae’s Essential Law for Journalists Mike Dodd (also a qualified lawyer) said he believed the costs incentive of the proposed press regulation regime was potentially unenforceable.
He said: “I suspect that if there’s a case where a newspaper wins a defamation case and is then told they are not allowed to recover their costs they will go straight to Strasbourg.
“They will say that you can’t do that because it’s a disproportionate interference with the right to freedom of speech.”
Niri Shan, the head of media law at Taylor Wessing, also said that he believed the legal underpinning for the proposed new press regulation regime could be in breach of European law.
He said: “It creates an atmosphere that would put a restraint on newspapers. If newspapers are at risk it may prevent them from publishing something they would otherwise have published.”
Pike agreed newspapers could make a case against the proposed exemplary damages regime, as did Kean – who descibed it as a breach of European law “that would be overturned”.
Press Gazette could only find two cases where publishers have been subject to exemplary damages in recent years. Elton John versus Mirror Group Newspapers from 1995 (£75,000) and Riches versus News group Newspapers from 1985 (£25,000).
Under the terms of the proposed Royal Charter, the new press regulator would have to include an arbitration service to settle libel and privacy disputes. The Royal Charter states that claimants would face no costs, even if the arbitrator found against them.
Kean said: “There is a real risk of claims farming and we have not had that culture in press claims before, because of the fact you are not going to be liable for costs in any circumstances claimants now have nothing to fear.”
Speaking in general terms she said: “Lord Justice Leveson should have had the courage to say there is enough law in this area already, the problem is that it was not enforced.
“Journalists aren’t like broadcasters who need a licence to access the airwaves, or lawyers who need a certificate to practice, anyone anywhere in the world can be a journalist and publish their material in the UK.
“The quango that is proposed doesn’t make sense and won’t make a jot of difference to the majority of the press who were perfectly reasonable.”