The City-based experts suggested to the Press Gazette that the threat of exemplary damages would not stand up to a challenge under the Article 10 right to freedom of expression protected in the European Convention on Human Rights. Under proposed guidelines, publishers may be subject to exemplary damages if ‘deliberate or reckless disregard of an outrageous nature for the claimant's rights’ has been displayed.
Legal underpinning
Niri Shan, head of media law at Taylor Wessing, claimed that the legal underpinning for the proposed regulation regime could create an atmosphere that would ‘put a restraint’ on newspapers which may prevent them from publishing material they would have otherwise published.
Farrer partner Julian Pike – who heads the firm’s contentious media practice and sports group – said that newspapers could make a case against the proposed exemplary damages regime, but added that the high-threshold would be ‘close to impossible to achieve in nearly all cases’.
‘Smoke and mirrors’
Wiggin partner Caroline Kean – head of litigation and leader of the firm’s publishing team – described the legislation as a breach of ECHR ‘that would be overturned’. She added that the proposals are ‘smoke and mirrors’ as responsible publishers would be unlikely to be subject to damages while ‘irresponsible ones will probably base themselves offshore outside this jurisdiction’.
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