Supporting the Leveson System, a reply to Helen Anthony – Hugh Tomlinson QC

Press regulation debate: Supporting the Leveson System, a reply to Helen Anthony – Hugh Tomlinson QC | Inforrm's Blog: "Helen Anthony mentions a number of legal arguments against the Leveson system.  These are not ones which, on analysis, are likely to succeed. First, she suggests that exemplary damages and “punitive costs orders” may breach Article 10 of the European Convention. I have previously dealt with the argument that exemplary damages  are a violation of free speech.  The short answer is that under the new statutory provision such damages could only be awarded in case of “deliberate or reckless disregard of rights of an outrageous nature” and where they are necessary properly to punish the defendant. This is proportionate and reflects the position in other countries which have strong free speech protection. Exemplary damages are already available in libel cases.  Awards are very rarely made and the position is not going to change under the new provisions. The main difference with the Crime and Courts Act is to provide immunity for members of an approved self-regulator.

The second argument is that the arbitration system is incompatible with Article 6 of the Convention because it denies access to justice.  Helen Anthony correctly points out that an arbitrator provides a “final and binding decision” (subject to an appeal on a point of law).  But under the Leveson system such a decision would be provided by an independent and impartial arbitrator, applying the law of libel or privacy in the same way that a judge does in court. So there is no basis for suggesting that it would be unlawful. The difference is that, in arbitration, the procedure can be streamlined to reduce time and costs.

In relation to the press, regulated publishers would agree to accept arbitration as a condition of joining the recognised self-regulator.  This is what happens in other areas where arbitration schemes are common-place.  For example, football clubs and footballers agree to be bound by FA rules – which include compulsory arbitration.  These have been found to be compatible with Article 6 by the Courts.  In relation to claimants they would still have a choice as to whether to use the arbitration system or go to court.  The only difference would be that, if they went to court, they would not usually be able to recover their costs.  This is a restriction on access to court but one which would not be found to be unlawful because it is proportionate and justified. It promotes the proper aim of providing swift and effective access to justice.  A properly designed and operated arbitration system would provide great benefits for both the press and claimants." 'via Blog this'