Lord Justice Leveson key proposal flawed - lawyers

Lord Justice Leveson with his report
Image caption Lord Justice Leveson's report on press regulation was published in November

One of Lord Justice Leveson's main recommendations to regulate the press is flawed, a group of leading barristers has suggested.

Legal opinion seen by the BBC said proposals on exemplary damages in privacy cases may breach the press's right to freedom of expression.

The proposals were based on an out-of-date Law Commission report which pre-dated the Human Rights Act, they said.

But the Hacked Off campaign said that view was "misconceived".

It called the view "another piece of propaganda" from the press.

"Punitive" damages are regarded as an anomaly in English civil law.

'Chilling effect'

In his report, which was published in November, Lord Justice Leveson recommended that exemplary or punitive damages should be available in breach of privacy cases.

He made the suggestion in order to provide an incentive for newspapers to voluntarily come within the remit of the new regulator.

The legal opinion said the proposals on exemplary damages were based on an out-of-date Law Commission report which pre-dated the Human Rights Act.

The lawyers said Lord Justice Leveson did not invite or take submissions on punitive damages, which have long been regarded as anomalous in English law because they bring the notion of punishment into civil law cases which should be about compensation.

The opinion also said the "chilling effect" of punitive damages might breach the press's right to freedom of expression.

However, the lawyers' opinion was challenged by Hugh Tomlinson QC, chairman of the Hacked Off campaign.

He told BBC Radio 4's Today programme: "The opinion is misconceived because the simple position is what Lord Justice Leveson is recommending is actually a very small change to the law.

"We already have exemplary damages, they are already available against the press.

Royal charter

"Under his recommendations they will just be available for certain new cases of privacy and they will be available only in cases where there was an outrageous and deliberate disregard of rights."

The judge's report, commissioned in the wake of the phone-hacking scandal, recommended an independent, self-regulatory watchdog for the press that would be backed by legislation.

But Prime Minister David Cameron said he did not believe a bill was necessary in order to set up the new system.

Instead, the Conservatives said a royal charter was the right way to provide legal backing for any new press regulator.

This has been cautiously welcomed Labour and the Liberal Democrats.

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