The hot topic of online publication is under review in a government consultation on internet defamation.
The review, launched last week, was triggered by concerns that English libel law’s ‘multiple publication rule’ is not fit for purpose in the digital age.
As things stand, the general rule is that a claimant must sue within a ‘limitation period’ of one year from the date of publication.
The problem is that there may be recurrent liability over internet publications because under the multiple publication rule, each hit online is deemed to be a fresh publication starting a fresh one-year limitation period, with the result that publishers’ liability is potentially open-ended.
The consultation asks whether the current law strikes the right balance between freedom of expression and the right to reputation and private life.
The multiple publication rule stems from a 19th-century case, Duke of Brunswick v Harmer (1849), in which the Duke sent his servant to buy an archived back-issue of a newspaper first published 17 years previously.
The court held this constituted a fresh publication of defamatory material to a third party – the servant – and the Duke won £500 in damages.
Today such a claim would probably not be successful because, on the basis of such a trivial degree of publication, it could be authoritatively argued that the case should be struck out as no real or substantial damage was done to the Duke’s reputation.
However, the survival of the basic principle from the Duke’s case poses a hazard for publishers, particularly where claimants can show that defamatory online content has been accessed by more than just a handful of readers.
Momentum for the review comes from the case of Loutchansky v The Times (2002) in which the Times was sued successfully twice by the same claimant, first over articles that it published both in print and online, and second, more than one year later, over its continued publication of the same content in its online archive of articles.
In March this year, the paper lost its appeal at the European Court of Human Rights, which decided that on the particular facts its right to freedom of expression had not been unlawfully infringed by English law’s adherence to the multiple publication rule.
Nevertheless, the court made clear that while those who are defamed must have a real opportunity to defend their reputations, libel proceedings brought against a newspaper after too long a period might well give rise to a disproportionate interference with freedom of expression.
The consultation outlines various options for reform, such as adopting:
The Law Commission itself scrutinised the multiple publication rule in 2002 and said there was a “need to review the way in which the multiple publication rule interacts with the limitation period applying to archived material.”
So, the Ministry of Justice’s three-month consultation, which ends on 16 December 2009, is perhaps long overdue.
It has now been sent to a wide range of stakeholders, including the Newspaper Society, Society of Editors, and Press Complaints Commission, for their input.
Chris Youett (22/09/2009 10:18:50)
They have all missed the point: because there is no legal aid, libel only protects the reputations of the rich such as the crooked publisher Robert Maxwell. The biggest single change, which is long over due, is to limit ordinary damages to £5,000 and require all cases to be heard by the District Judge. Most injured parties only want appropriate apologies and modest costs/damages.
I strongly advise all these lawyers and other stakeholders to read the legal column in Private Eye every fortnight if they think that some of their proposals are right for the digital age. In particular, they should look at the activities of a rich arab who died recently but was able to sue anyone who truthfully said that he funded terrorism.