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European court upholds 150-year-old libel rule

European judges have rejected an English newspaper’s attempt to liberalise internet libel law.

The Times lost its appeal in the European Court of Human Rights (ECHR) after being sued over two news reports alleging a Russian businessman was linked to money-laundering.

The reports were published in the paper’s print edition and simultaneously online.

The first libel writ arrived a few months after the initial publications – well within the usual 12-month limitation period applicable to libel claims. While that litigation was on-going, the paper kept internet versions of the reports available online, without amendment.

About 14 months after the initial publications, a second libel writ arrived in respect of the continuing online publications – i.e. outside the 12-month limitation period applicable to the print-edition reports.

After receiving the second writ, the paper added the following preface to its online articles: “This article is subject to High Court libel litigation between [Russian businessman] and Times Newspapers. It should not be reproduced or relied on without reference to Times Newspapers’ Legal Department.”

In court, the paper tried to argue that as a matter of law the only actionable publication of a newspaper article on the internet is “that which occurs when the article is first posted on the internet”.

That’s known as the ‘single publication rule’. Since the case of Firth v State of New York (2002), it is the rule that has been adopted by courts in the USA.

The New York Court of Appeals observed that the ‘single publication rule’ was “cogent” when considered in connection with the exponential growth of the instantaneous, worldwide ability to communicate through the internet.

It added: “Thus a multiple publication rule would implicate an even greater potential for endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants. Inevitably, there would be a serious inhibitory effect on the open, pervasive dissemination of information and ideas over the internet which is, of course, its greatest beneficial promise.”

Duke of Brunswick

However, the English High Court rejected The Times’ ‘single publication’ argument, preferring to apply a 150-year-old legal rule from the case of Duke of Brunswick v Harmer (1849), in which the infamous facts were as follows.

In 1830, when the limitation period for libel was six years, an article was published in the Weekly Dispatch. The article defamed the Duke of Brunswick.

Seventeen years after publication, an agent of the Duke purchased a back copy of the article, and a second copy was obtained from the British Museum.

The delivery of a copy of the newspaper to the Duke’s agent was held to be a fresh publication which re-started the limitation clock, enabling the Duke to sue for libel many years after the original publication when the limitation period had long since expired.

Applying to online

In Godfrey v Demon Internet (2001), the English High Court decided that that old common law rule also applied to online publications – the so-called “Internet publication rule”. Every time content is accessed online in the UK, it is deemed to be re-published and actionable within the following 12 months.

The Times appealed to the Court of Appeal. It argued the effect of the internet publication rule was that newspapers which contributed to an open and democratic society, by maintaining the integrity and availability of historical records online, were exposed to ceaseless liability for re-publication of defamatory material.

This, The Times argued, was in breach of their right to freedom of expression under Article 10 of the European Convention on Human Rights.

However, the Court of Appeal upheld the Duke of Brunswick rule and said online archives were a comparatively insignificant aspect of freedom of expression compared with the dissemination of contemporary material.

The House of Lords refused permission to appeal.

Seven years on – and almost 10 years after the money-laundering articles were first published – The Times has now also been disappointed by the ECHR.

It ruled on 10 March that English law’s internet publication rule is a “justified and proportionate restriction” that does not necessarily constitute a disproportionate interference with the right to freedom of expression.

The ECHR reiterated that Article 10 “does not guarantee a wholly unrestricted freedom of expression to the press, even with respect to press coverage of matters of serious public concern” and said individuals’ right to reputation must also be weighed in the balance.

The European judges noted that the English Court of Appeal had said potentially defamatory internet articles need not be removed from archives altogether, because annotating them with a qualifying statement warning against treating them as the truth would normally be sufficient to “remove any sting from the material”.

Accordingly, English law did not impose a disproportionate interference on free speech in this regard.

However, the ECHR emphasised that libel proceedings brought against a newspaper “after a significant lapse of time” in respect of an online report “may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under Article 10″.

The Times, and the rest of our media, will have to draw what reassurance they can from that ill-defined concession to the UK press.

  • Solicitor Nigel Hanson is a member of Foot Anstey’s media team.
    To contact Nigel telephone 0800 0731 411 or e-mail
  • Comments

    Web Man (24/03/2009 07:38:01)
    Yes, why should the courts apply a modern ruling which makes perfect sense when they can dig up a 160-year-old ruling that makes no sense whatsoever in the digital age. Clever old judges.

    Arnold Frampton (28/05/2009 13:51:30)
    I’m sorry I just don’t understand the judges logic here perhaps someone could explain it to me. If purchasing a 7 year old newspaper containing a libel constitutes a new libel does that make every second hand book with a libel illegal? Because if so most antiquarian booksellers are going to end up in court!