An interesting article:
http://www.ministryoftruth.me.uk/2013/0 ... on-system/
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At least one newspaper – The Guardian – has indicated that it has received legal advice that suggests that the new provision for exemplary damages could be susceptible to a legal challenge under article 10 of ECHR, and I strongly suspect that it is the creation of two separate types of exemplary damages that Garnier identifies here that may well have been identified as a possible breach of newspapers’ article 10 right.
This being the case, a successful legal challenge to this dual system for awarding exemplary damages would force Parliament to choose between two options for bringing this system into line with ECHR. It could either drop the parallel statutory provisions for exemplary damages against relevant publishers, which would entirely defeat the primary purpose of their introduction as an incentive for newspapers to sign up to the new regulator, or it could extend these provision to Garnier’s irrelevant publishers leaving anyone and everyone open to a claim for exemplary damages for the misuse of private information, breach of confidence and harassment.
And it may not even stop there, because when it comes to private and confidential information, and even harassment, the distinction these clauses make between news-related material and other published information is rather arbitrary. Why, for example, should a celebrity or public figure be allowed to claim exemplary damages over the publication of a private photograph in a newspaper but not a private citizen who has a similarly private photograph posted, without their permission, on Facebook, or perhaps more to the point, on a revenge porn website?
It is at least conceivable that the distinction between news-related material and other published material could be challenged under article 10; there is, after all, no such distinction in claims for defamation and malicious falsehood.
There is potential a huge can of worms lurking here, waiting to be opened should the press choose to take to the courts to challenge these clauses, one that could leave everyone who posts any kind of private or confidential information online, whether on a website, blog or social network, wide open to a claim for exemplary damages.
The clauses that are supposed to keep bloggers and specialist publications that ‘do news’ only an incidental basis do not appear to as clear cut as some politicians have been suggesting, a fact that Maria Miller more or less admitted to in Tuesday’s debate, although to be scrupulously fair here, Miller own understanding of the implications of these clause may not all is should be.
Where there is, however, cause for serious concern is in the extension of exemplary damages to torts involving misuse of private information, breach of confidence and harassment and the manner in which this has been undertaken, i.e. by creating a parallel system in statute that ostensibly targets only commercial publishers of news-related material alongside the existing common law system, which in the case of libel, defamation and malicious falsehood, covers all publishers.
The question here is whether or not this system would stand up in the face of legal challenge mounted by the press under article 10 of ECHR and how the government would respond were such a challenge to prove successful, as this could easily result in the extension of exemplary damages in these torts to all publishers, including bloggers and ordinary citizens publishing information on social networks such as Facebook and Twitter.
That’s where the real hand-grenade resides in these clause and it seems odd that the press has yet to point this out, particularly in light of the lengths to which newspapers are currently going in their efforts to recruit bloggers to serve as human shields for the own interests, most of which have nothing whatsoever to do with these clauses.