Aggravated, Exemplary and Restitutionary ... - Law Commission

Thus it has been suggested that the legitimacy of any limitation on the right to
freedom of expression under English domestic law is governed by principles which
closely resemble those which are expressed in Article 10(2) of the Convention. In
Attorney-General v Guardian Newspapers Ltd (No 2) 431
Lord Goff stated that:
I conceive it to be my duty, when I am free to do so, to interpret the
law in accordance with the obligations of the Crown under this treaty.
The exercise of the right to freedom of expression under article 10
may be subject to restrictions (as are prescribed by law and are
necessary in a democratic society) in relation to certain prescribed
matters, which include ‘the interests of national security’ and
‘preventing the disclosure of information received in confidence’. It is
established in the jurisprudence of the European Court of Human
Rights that the word ‘necessary’ in this context implies the existence of
a pressing social need, and that interference with freedom of
expression should be no more than is proportionate to the legitimate
aim pursued. I have no reason to believe that English law, as applied in the
courts, leads to any different conclusions. 432
1.147 Accordingly, in two recent cases the Court of Appeal has considered the particular
implications of these ‘constraints’ on legitimate derogations from the right to
freedom of expression for jury-assessed damages awards in defamation actions.
The “almost limitless discretion” of the jury when it assesses damages in
defamation cases, 433
as well as the excessive size of the awards which often result,
have given rise to substantial judicial concern about how far this is consistent with
due regard for the right to freedom of expression, and for the various constraints
on legitimate derogations therefrom. As a direct result, in both cases the Court of
Appeal found it necessary to modify previous approaches to jury-assessed damages
awards.
1.148 In Rantzen v Mirror Group Newspapers Ltd 434
the Court of Appeal said:
[I]t seems to us that the grant of an almost limitless discretion to a jury
fails to provide a satisfactory measurement for deciding what is
‘necessary in a democratic society’ or ‘justified by a pressing social
need’. 435
Accordingly, in order to ensure that the restriction on freedom of expression
constituted by defamation damages was ‘legitimate’, courts had to subject large
awards of damages to “more searching scrutiny than [had] been customary in the
past”, and the barrier against appellate intervention in jury awards should be
Guardian Newspapers Ltd (No 2); R v Wells Street Stipendiary Magistrate, ex p Deakin [1980]
AC 477.
431 [1990] 1 AC 109.
432 [1990] 1 AC 109, 283G-284A (emphasis added).
433 Rantzen v MGN Ltd [1994] QB 670, 692G, per Neill LJ.
434 [1994] QB 670.
435 [1994] QB 670, 690G.
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