Exemplary Damages for Invasions of Privacy

Abstract

As part of the government response to the Leveson Report, the Crime and Courts Act 2013 (UK) introduces new provisions on the availability of exemplary damages for media torts. This Act creates a statutory bar to the awarding of exemplary damages against a publisher who has become a member of an approved regulator but otherwise makes them available in narrowly defined circumstances. The article explores the extent to which the changes are likely to affect media publishers and, as part of this analysis, compares the new provisions with current English law as well as the relevant law in Australia, New Zealand and Canada. It also examines whether the new statutory regime is compatible with the UK's obligations under the European Convention on Human Rights. The article concludes that the statutory measures are to be welcomed because exemplary damages have an important but limited role in deterring particularly egregious media misconduct and the provisions provide more certainty to media publishers as to when they can be ordered. The article also argues that the new provisions on exemplary damages are compatible with the UK's obligations under the Convention.

Keywords: right to privacy, privacy, damages, punitive damages, human rights law, freedom of expression, media law

JEL Classification: K33