Dear colleagues

I cannot agree with Duncan that restitutionary damages fit the bill better than exemplary damages. The deterrent effect of restitution would be to deprive the newspaper (let us say) of its profit. Unless quantification is so random as to constitute a terror weapon, there is no real punishment in what is merely retitutio in integrum. And as the sanction will by no means be successfully applied in every case, this non-existent risk will be well worth running. We must punish on Benthamite reasoning about trading of magnitude against uncertainty of punishment.

Michael is right, then, to ask for an alternative punishment from those who see no way forward with exemplary damages. It seems to me that some sufficiently refined version of ensuring the newspaper has to give similar prominence to retractions or apologies as it did to the libel or the infringement, even perhaps extending this as a remedy to the civil court, would avoid the problems which are the inevitable concomitants of exemplary damages. This sanction, which I thought was appropriate long before recent scandals, seems to me to have been often mentioned but never to have been properly explored.

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: Jones, Michael [M.A.Jones@liverpool.ac.uk]
Sent: 27 March 2013 13:08
To: David Campbell; Andrew Tettenborn; Hedley, Steve
Cc: obligations@uwo.ca
Subject: RE: "Why extending exemplary damages is the best approach for public interest journalism"

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<mailto: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<mailto: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)






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