The English jurisdiction has arguably the most claimant-friendly libel laws in the world and, by adding into the mix Conditional Fee Agreements and After the Event Insurance, London has become known as the libel capital of the world.
The recent European Court of Human Rights judgment of Times Newspapers Ltd (Nos. 1 and 2) v The United Kingdom (Applications 3002/03 and 23676/03) has done nothing to dent the reputation of London as the libel capital of the world.
The applications by Times Newspapers Ltd centred on the English ‘multiple publication’ rule and whether it breaches Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms (the right to freedom of expression).
The Law
The general proposition in English law is that each communication of a defamatory statement is a separate publication and gives rise to a separate cause of action (Duke of Brunswick v Harmer (1849) 14 QB 185). This means that, if the defamatory statement is repeated or if the original publication is further distributed, a further cause of action arises.
In the digital age the implications of this are put under a harsh spotlight where a newspaper publishes a defamatory article in its printed edition and simultaneously in electronic format on the Internet and subsequently in its online archives. If an article contains a defamatory statement about an individual, the printed edition will give rise to a complaint under libel law and a re-print of the edition will give a further separate claim. If the article is posted on the publication’s Web site, a further separate publication will occur on each and every occasion that it is accessed by a member of the public because each time it is read, it is re-published – all of which re-publications will give rise to separate claims.
In relation to the time limits for bringing a libel claim, s 4A of the Limitation Act 1980 states that a claim for libel must be issued within one year of the date of publication of the defamatory statement (subject, of course, to the proviso that the court can extend the time period). The rationale behind this is one of public policy; if a reputation has been damaged one should act quickly: authors’ notes get thrown out and memories fade. Such factors cause additional difficulties for publishers and authors who wish to defend libel claims if actions are not pursued promptly.
The Case
On 8 September 1999, The Times published in its printed edition an article entitled ‘Second Russian Link to Money Laundering’. The article related to UK and American investigations into money-laundering and a named Russian’s involvement in such activities – let us call him ‘Mr X’.
A second article was published in the printed edition of The Times on 14 October 1999 under the title ‘Trader linked to mafia book, wife claims’ and referred to Mr X and his alleged involvement in money-laundering, smuggling of nuclear weapons and general criminal activity.
Both articles were posted on The Times’ Web site on the same day that they appeared in the printed edition.
Mr X issued libel proceedings against The Times on 6 December 1999 in respect of both articles. The Times did not remove either article from its Web site. On 6 December 2000, Mr X issued a second libel claim against The Times in respect of the continuing Internet publication of both articles. Both libel actions were consolidated and The Times pleaded the defence of qualified privilege – asserting that the allegations against Mr X in the articles were so important that it was in the public interest for The Times to publish the information – indeed that it had a moral duty to do so and that the public had a reciprocal right to know the information published.
In March 2001, The Times sought to amend its defence in relation to the second article and argued that the actionable publication of the articles on The Times’ home page was when the articles were first posted. Accordingly, under the Limitation Act, Mr X was time barred from bringing the second claim.
The High Court struck out this line of defence on the grounds that, after filing its original defence in February 2000, The Times had no reason to retain the articles online. The judgment was appealed and The Times argued that the multiple publication rule breached Article 10 of the Convention. The Times argued that newspaper archives provide a valuable tool in documenting history. The effect of leaving the multiple publication rule in place would have a chilling effect on newspapers’ freedom of expression because maintaining online archives would expose newspapers to almost endless potential liability for re-publication of defamatory material.
However, in December 2001, the Court of Appeal dismissed The Times’ appeal stating that the current libel law did not impose ‘a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression’, adding that the ‘attachment of an appropriate notice warning against treating [the article] as the truth will normally remove the sting from the material’.
The House of Lords refused leave to appeal. Both claims were subsequently settled with The Times paying Mr X damages and costs. The Times filed its two applications with the European Court of Human Rights to obtain a ruling on whether the multiple publication rule breached Article 10 of the Convention.
ECHR Judgment
In summary, the ECHR found that there was no breach of The Times’ right to freedom of expression.
Having used four pages to outline the background and relevant law, the Court used only a page and a half to consider the merits of the applications. The judgment reiterated the importance of balancing the two conflicting principles embedded within the Convention – on the one hand, the importance of free expression within a democratic society and, on the other, the responsibility to protect the reputation and rights of individuals.
The judgment referred to the judgment of the Court of Appeal and placed emphasis on the fact that The Times did not, at the time when Mr X first issued his second claim, promptly add to either of the two articles any qualification or note regarding Mr X’s complaint – although it did do so a little later. The Court felt that the attachment of a qualification or note to an online article which was available from archived editions would not ordinarily constitute a disproportionate interference with Times’ right to freedom of expression.
The ECHR judgment did not comment in detail on the multiple publication rule. However, the Court did comment that ‘while an aggrieved applicant must be afforded a real opportunity to vindicate his right to reputation, libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under Article 10’; this may offer a glimmer of hope to English based publishers who are keen to see the multiple publication rule amended.
Current Situation
So, where are we now?
We appear to be in exactly the same place as the Duke of Brunswick when judgment was delivered in his libel claim in 1849. In that situation, the Duke of Brunswick obtained a re-print of the defamatory article 17 years after the original publication. The Court held that the re-print was a new publication which allowed him to bring libel proceedings.
But that was in 1849 when the digital age had not even been a twinkle in the eyes of the great Victorian engineers. Nowadays, articles are e-mailed around the world in minutes and the Internet provides such a powerful tool that almost everything and everyone can be found on it within seconds.
The reality is that defamatory articles can be published, re-published and distributed around the world within minutes of their release. It is increasingly time-consuming for potential claimants to monitor such publications. Some argue that the multiple publication rule is a good thing – it allows potential claimants to bring libel proceedings regarding information which had previously been unknown to them and which they discover on the Internet – sometimes years after it was originally posted there. Others argue that it merely extends without limit the ability of someone to bring a claim against a publisher or author and it deprives publishers and authors of the certainty that potential liability for a particular article will ever come to an end.
So can we really say that, in relation to the Internet, the multiple publication rule provides ‘justice’ to all parties?
America’s New York Court of Appeals considered this point in the case of Gregoire v GP Putnam’s Sons (1948) 81 NE2d 45 and said that the rule in Duke of Brunswick v Harmer was formulated ‘in an era which long antedated the modern process of mass publication’. The rule was again considered in 2002 (Firth v State of New York (2002) NY int 88) and the New York Court of Appeals held that the limitation period for libel claims began when the report was first uploaded on to the Internet. America has therefore adopted the ‘single publication’ rule which some consider to strike a better balance between providing a potential claimant with a remedy and providing a potential defendant with certainty as to when the liability for a publication will end.
The English courts, however, have taken a different view which is now approved by the ECHR: in Godfrey v Demon Internet Limited [2001] QB 201 (a claim for defamation against an ISP), the High Court followed the rule in Duke of Brunswick v Harmer stating that ‘the defendants, whenever they transmit and whenever there is transmitted from the storage of their news servers a defamatory posting, publish that posting…thus every time one of the defendants’ customers accesses ‘soc culture thai’ and sees that posting defamatory of the plaintiff there is a publication to that customer’. As one would expect the Commonwealth is following suit, with Australia and Canada upholding the multiple publication rule. The result is that there are two distinct regimes operating in different parts of the world – not an ideal result but a fact of life.
Consequences of the Multiple Publication Rule
The multiple publication rule exerts immediate pressure when a libel complaint first arrives on a publisher’s desk. If the complained-of publication appears online, should the publisher take the article down straight away to protect his position, should he add a note/qualification (and if so how should such note or qualification be phrased) or should he leave the online publication as it is? An early – and correct – decision is very important.
The multiple publication rule also creates additional problems for the settlement of libel complaints. Many publishers – but particularly publishers of respectable newspapers – whose pages (whether paper or online) will form important material for future historical research – consider it important that a complained-of article remains on its online archives because of its inherent historical significance. Such a stance however leaves the possibility of further claims being brought in the future. These difficulties can sometimes be met by the addition of a suitable note or qualification to the original publication but in the highly charged atmosphere of settlement discussions, negotiating an appropriate regime for the publication of archive materials will not generally ease the settlement process.
Whatever the merits and de-merits of the multiple publication rule, the ECHR has not changed it – so that publishers in the digital age must adapt to the situation as it is – unless and until Parliament intervenes to change the status quo.
© Andrew Joyce and Jessica Lee
Andrew Joyce is the Head of Media and a partner in the Intellectual Property and Commercial Department at Wedlake Bell: ajoyce@wedlakebell.com or visit www.wedlakebell.com
Jessica Lee is a Solicitor in the Intellectual Property and Commercial Department at Wedlake Bell: jlee@wedlakebell.com or visit www.wedlakebell.com
