The Times newspaper had argued that the burden of indefinite
liability was so onerous that it would have a 'chilling effect' on
archive publishers, but the ECHR has reaffirmed that a new
defamation action can be taken every time online defamatory
material is accessed.
The Times had said that this created 'ceaseless liability' for
newspaper publishers and that this would result in a restriction on
free speech.
Article 10 of the European Convention on Human Rights (the
Convention) says: "Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by public
authority and regardless of frontiers".
"[The Times] argued [in the High Court] that the Internet
publication rule breached Article 10, pointing out that as a result
of the rule newspapers which maintained Internet archives were
exposed to ceaseless liability for re-publication of the defamatory
material," said the ECHR's ruling. "[The Times] argued that this
would inevitably have a chilling effect on the willingness of
newspapers to provide Internet archives and would thus limit their
freedom of expression."
A Russian businessman named in The Times's story but known in
the case only as GL sued over articles published in 1999 which
claimed that he was being investigated in the UK and US over money
laundering allegations.
GL sued first over the newspaper article and then, one year
later, over its publication and continuing availability on the
internet. The Times settled, but not before it had lodged an
objection to the pursuit of a separate case related to the online
publication.
"The applicant alleged that the rule under United Kingdom law
whereby each time material is downloaded from the Internet a new
cause of action in libel proceedings accrued ('the Internet
publication rule') constituted an unjustifiable and
disproportionate restriction on its right to freedom of
expression," said the ECJ ruling, outlining The Times' case.
The High Court ruled that, based on a case from 1830 involving
the Duke of Brunswick, a new defamation occurred every time a piece
was published. This meant, it said, that a new cause of action
occurred every time defamatory material was accessed on the
internet.
A 2001 case involving Demon Internet bolstered that view and
strengthened the precedent that new publication takes place every
time an article is accessed. In effect it means there is no statute
of limitation on defamation actions where stories are kept in an
open online archive.
"In my judgment the defendants, whenever they transmit and
whenever there is transmitted from the storage of their news server
a defamatory posting, publish that posting to any subscriber to
their ISP who accesses the newsgroup containing that posting," said
the ruling in the Demon Internet case. "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.”
The Times had wanted the UK to adopt the same approach as the
US. In 1948 a US court ruled that the Duke of Brunswick precedent
was outdated, and that a limitation period should run from the
initial publication of material. This is called the 'single
publication rule'.
The ECHR said that it had already ruled in a case involving The
Guardian and The Observer newspapers that the right to freedom of
expression applied to newspaper readers as well as publishers.
"The Court has consistently emphasised that Article 10
guarantees not only the right to impart information but also the
right of the public to receive it," it said. "In light of its
accessibility and its capacity to store and communicate vast
amounts of information, the Internet plays an important role in
enhancing the public's access to news and facilitating the
dissemination of information generally. The maintenance of Internet
archives is a critical aspect of this role and the Court therefore
considers that such archives fall within the ambit of the
protection afforded by Article 10."
The Court said the court case over the allegations clearly
interfered with the free expression of The Times, but that it had
to rule whether that was permitted interference or not.
"The Court … considers that the second action constituted an
interference with [The Times's] right to freedom of expression.
Such interference breaches Article 10 unless it was 'prescribed by
law', pursued one or more of the legitimate aims referred to in
[the Convention] and was 'necessary in a democratic society' to
attain such aim or aims," it said.
The ECHR found that the interference was lawful because of the
UK legal precedent in the Duke of Brunswick case; that protecting
the reputation of others was a legitimate aim; and that the court's
actions in allowing action against the internet publication were
within the boundaries of what was 'necessary in a democratic
society' to attain the aims.
"The Court observes that the Internet archive in question is
managed by the applicant itself," said the ruling. "It is also
noteworthy that the Court of Appeal did not suggest that
potentially defamatory articles should be removed from archives
altogether. In the circumstances, the Court, like the Court of
Appeal, does not consider that the requirement to publish an
appropriate qualification to an article contained in an Internet
archive, where it has been brought to the notice of a newspaper
that a libel action has been initiated in respect of that same
article published in the written press, constitutes a
disproportionate interference with the right to freedom of
expression."
"The finding by the domestic courts in the second action that
the applicant had libelled the claimant by the continued
publication on the Internet of the two articles was a justified and
proportionate restriction on the applicant's right to freedom of
expression," it said. "There has accordingly been no violation of
Article 10 of the Convention."
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