The difficulty is that instruments like punitive damages may work where there's a bright line between what you should and shouldn't do, but they're much more blunt where there isn't. My view is that privacy is an instance of the latter. Duncan is quite right to say there are zillions of cases on the interface between Arts 8 and 10 ECHR; my own feeling is that if the matter has to be litigated that much that is a very good sign that the law is not so much clear as hopelessly fuzzy. That feeling is backed up, in my view, by what the courts do. A senior judge has said, apparently with a straight face, that “in the majority of cases the question of whether there is an interest capable of being the subject of a claim for privacy should not be allowed to be the subject of detailed argument" (A v B Plc [2002] EWCA Civ 337, [2003] Q.B. 195 at [11]); another has pronounced vacuities such as saying it's all about "the protection of human autonomy and dignity – the right to control the dissemination of information about one's private life and the right to the esteem and respect of other people” (Campbell v MGN [2004] 2 A.C. 457 at [51]. With the law in this state the most ardent enthusiast for punishment should surely think at least three times. Michael's cure, I have a horrible feeling, would be likely to turn out rather than the disease.

Best wishes to all

Andrew

Dear All,

 

If it makes commercial sense for a newspaper to print lies or invade people’s privacy because it will create a profit that exceeds any potential damages and costs, then why would a rational editor not simply ignore the law and publish?  That is capitalism at its naked best/worst (insert your adjective of choice).  It may show utter contempt for the law and the “rights” of individuals, but isn’t profit king?

 

If we want the media to respect the law then we have to give them an incentive to do so. Relying on commercial organisations to comply with the law when it gets in the way of a profit out of the goodness of their heart or a sense of social responsibility is clearly not going to work (at least if we accept much of the evidence heard by Leveson).

 

It seems to me that those who think exemplary damages are not the way forward have a responsibility to come up with something that will actually work, as opposed to relying on assertions from media magnates and editors that they have learned their lesson and for the future they will be “good chaps” and behave themselves. History is not on their side.

 

On the other hand, if only I could get a newspaper to hack my phone ...

 

Of course, they won’t, unless I happen to become “newsworthy” by suffering some tragedy or getting into bed with a “celebrity”. The first I hope to avoid (but have absolutely no control over) and the second I have two chances of happening: nil and a snowball in Hell’s.

 

Michael

 

------------------------------------------

Michael A. Jones

Professor of Common Law

Liverpool Law School

Chatham Street

Liverpool

L69 7ZS

 

Phone: 0151 794 2821

Fax:     0151 794 2829

------------------------------------------

 

 

-----Original Message-----
From: David Campbell [mailto:I.D.Campbell@leeds.ac.uk]
Sent: 27 March 2013 11:35
To: Andrew Tettenborn; Hedley, Steve
Cc: obligations@uwo.ca
Subject: RE: "Why extending exemplary damages is the best approach for public interest journalism"

 

Dear colleagues

 

As is common in arguments for exemplary damages, Hugh Tomlinson writes of some ideal form of these damages in which they are consistently distinguished from 'ordinary' awards, hit only those who deserve to be hit, and are rationally quantified. In the actual law, none of these things happen. I do not see how this can be denied. It certainly can't be denied by Mr Tomlinson just saying that these problems will not arise.

 

Best wishes

 

David Campbell

 

David Campbell, BSC(Econ), LLM, PhD, FCI(Arb) Professor of International Business Law

 

School of Law

Liberty Building

University of Leeds

LEEDS

LS2 9JT

UK

 

tel:  [+44] (0) 113 343 7041

fax: [+44] (0) 113 343 5056

email: i.d.campbell@leeds.ac.uk<mailto:i.d.campbell@leeds.ac.uk>

 

http://www.law.leeds.ac.uk/about/staff/d-campbell.php

 

________________________________

From: Andrew Tettenborn [A.M.Tettenborn@swansea.ac.uk]

Sent: 27 March 2013 08:24

To: Hedley, Steve

Cc: obligations@uwo.ca

Subject: Re: "Why extending exemplary damages is the best approach for public interest journalism"

 

Much though I disapprove of Hacked Off as an organisation backed by the great, good, rich and powerful, Hugh Tomlinson is right about defamation. There isn't much threat here: for punitives, there would presumably have to be knowledge, or the next best thing, that what was said wasn't true; and there's not much excuse for publishing in the light of that.

 

Punitives, in my view, are much more worrying as regards privacy. Privacy has already expanded much too far as a high constitutional principle, courtesy of ECHR Art 8 (examples being Campbell [2004] 2 A.C. 457, Murray [2007] EWHC 1908; [2007] E.M.L.R. 22 (Ch) and Mosley [2008] EWHC 1777 (QB); [2008] E.M.L.R. 20). It's an area where there is much more room for disagreement as to what is right and what isn't: what people should have to put up with and what they shouldn't. To say there might be a punitive award here would, I suspect, have a considerable chilling effect.

 

Andrew

 

 

On 27/03/13 07:42, Hedley, Steve wrote:

Only a sub-issue in the ongoing Leveson farrago, but perhaps of interest to ODG members.

 

"There has, over the last few months, been widespread criticism from the press of Lord Justice Leveson’s recommendations about exemplary damages.  These recommendations have been widely misreported and misunderstood.  Many have been misled by words like “punitive” and “fines” into thinking that such damages would be imposed as a matter of routine on publishers who make mistake ..." (more<http://inforrm.wordpress.com/2013/03/27/why-extending-exemplary-damages-is-the-best-approach-for-public-interest-journalism-hugh-tomlinson-qc/>)

 

[Inforrm's Blog, 27 March]

 

--

 

 

Andrew Tettenborn

Professor of Commercial Law, Swansea University

 

School of Law, University of Swansea

Richard Price Building

Singleton Park

SWANSEA SA2 8PP

Phone 01792-602724 / (int) +44-1792-602724 Fax 01792-295855 / (int) +44-1792-295855

 

 

        Andrew Tettenborn

Athro yn y Gyfraith Fasnachol, Prifysgol Abertawe

 

Ysgol y Gyfraith, Prifysgol Abertawe

Adeilad Richard Price

Parc Singleton

ABERTAWE SA2 8PP

Ffôn 01792-602724 / (rhyngwladol) +44-1792-602724 Ffacs 01792-295855 / (rhyngwladol) +44-1792-295855

 

 

 

 

Lawyer (n): One versed in circumvention of the law (Ambrose Bierce)

 

 

 

 

 

 

***