RedHerringBlurbThe media continue to seek to resist Lord Justice Leveson’s proposals for the self-regulation of the press by appeals to their “human rights”.  A number of legal opinions opposing the proposals have been leaked to the press although, as far as I am aware, none have in fact been published.  Whilst it is good to see that the Daily Mail and the Daily Telegraph have become converts to the value of the European Convention on Human Rights, these claims do not – on analysis – undermine the Leveson proposals.

The first “leaked opinion” was by Lord Pannick, Desmond Browne and Antony White and concerned the question of exemplary damages.  Many of the arguments had already been dealt with by me in a previous post but four additional points have been made.

First, contrary to the suggestion that Law Commission neglected the human rights dimension of exemplary damages, it refers to Article 10 (see paras 4.61-4.67).   The report carefully examined all the arguments for and against exemplary damages and came out in favour of their retention.

Secondly, the Commission, unusually, carried out two consultation exercises (see para 1.6).  There was 72% to 28 % majority in favour of retaining exemplary damages in some form (see para 1.14 esp note 28).

Third, the Law Commission noted that English law has been out of line in the common law world in having the so-called Rookes v Barnard restrictions on exemplary damages. They are more freely available in other jurisdictions. The emphasis on ‘deliberate and outrageous disregard’ of another’s rights (which Pannick et al criticise) was taken by the Law Commission from the test applied in those other jurisdictions where it has worked perfectly well (see para 5.46).

Finally, far from treating exemplary damages as anomalous, the only House of Lords decision since the Law Commission’s Report  (Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122) has expanded the range of exemplary damages in line with the Law Commission’s report (by removing the so-called ‘cause of action’ test).

In short, the arguments that exemplary damages are inconsistent with authority, incompatible with Article 10 of the Convention, and objectionable in principle are misconceived.  The suggestion that a newspaper which shows “a deliberate or reckless disregard of an outrageous nature for the claimant’s rights” will be able overturn a proportionate award of exemplary damages in Strasbourg is fanciful.

The latest argument concerns the ordering of apologies by a new self-regulator.  The Times reports that various leading lawyers have condemned them on a number of grounds.  Lord Pannick, was quoted as saying that he was concerned that the power to order apologies or impose a sanction for failure to comply could conflict with Article 10 of the European Convention on Human Rights.

“If the Editor does not believe he or she should apologise, or does not agree with the content or the placing of the apology as required by the regulator, it raises real issues of freedom of expression under article ten for the newspaper then to be required to publish a specific statement in a specific place.”

There is a very short and decisive answer to this point.  The membership of the new regulatory body will be voluntary.  A newspaper will have to sign up to the contract which governs its operation.  Such a contract will confer on the regulator a power to direct an apology and to direct where it is placed.  If the newspaper signs up then, by consent, it waives any Article 10 rights it might have in relation to these matters.

But, in fact, an order for an apology is entirely consistent with Article 10.  Lord Pannick does not appear to express a concluded view on the point.  However, more detail can be gleaned from another “leaked legal opinon” which was “commissioned by the newspaper industry and seen by The Times” also warns that giving a regulator power to publish a non-consensual apology violates human  rights laws.

According to the newspaper, the opinion, by Desmond Browne and Alexandra Marzec, says that it would extend the courts’ powers into new territory — giving the courts

“a jurisdiction which [they] have never had” — and which Parliament has rightly . . . never thought fit to confer on them …. The courts would be dictating the editorial content of a newspaper: not only would it be an interference with the right to free expression protected by article ten, it would be the very antithesis — effectively compulsory expression.”

It is difficult to assess the reasoning behind this conclusion – as the opinion has not been “leaked” to the general public.

The first point in the above quotation is correct – in contrast to the courts in many European countries, those in England do not have the power to order apologies.  The Leveson report does not propose any change in this regard.

However, the point about Article 10 is wrong.   We do not know how the relevant case law of the Court of Human Rights was analysed.  Interestingly enough, in the case of Aleksey Ovchinnikov v. Russia [2010] ECHR 2033 (16 December 2010) this very point was urged on the Court:

“the applicant …  argued that only a voluntary apology might be acceptable under the Convention. It was clearly excessive to compel someone to make an apology, thereby forcing him to express an opinion that did not correspond to his personal convictions” [37].

This argument did not find favour with the Court of Human Rights which held that the order for an apology in that case was not a violation of Article 10.  Ordered apologies have been found to be justified in other cases such as Kania and Kittel v Poland ([2011] ECHR 978 (21 June 2011).

There are, of course, cases in which the order for an apology has been found to be an unjustified interference with Article 10.  It all depends on the facts.  The important point is that there is nothing in the Strasbourg case law to suggest that an order for an apology is, of itself, whatever the facts, incompatible with Article 10.  The position is clear beyond sensible doubt where the apology is ordered not by a Court but by a regulator to which the newspaper has subscribed voluntarily.

This is also the answer to a comment made by Mark Stephens and quoted in the Times:

“The power to order the positioning of an apology is effectively the Government taking over the printroom — the regulator will be sitting in the editor’s chair.

The use of the word “effectively” reveals that Mr Stephens is aware that the Government is not, in fact, “taking over the printroom”.  The Government is not planning to order anyone to do anything.  The regulator is not the government – it will be an industry established body to which the newspaper is only subject if it joins voluntarily.  The editor will have agreed to give certain of his or her powers to the regulator in order to enforce a Code of Standards in the public interest.

On examination, the “human rights” arguments against Lord Justice Leveson’s recommendations do not bear serious examination.  As Article 10 itself makes clear, the exercise of the right to freedom of expression “carries with it duties and responsibilities“. The purpose of the Leveson scheme is to put in place a system of self-regulation which encourages the press to respect those duties and responsibilities.  The incentives which support this system serve a proper purpose under Article 10(2) and will, in my view, be found to be compatible with the human rights of the media corporations.

Hugh Tomlinson QC is an editor of Inforrm and the Chair of Hacked Off, the campaign for a free and accountable media.