It also makes it too easy for subjects of bad press coverage to
improve their standing in history.
The Times newspaper asked the ECHR to rule that this law, known
as the Multiple Publication Rule, has a "chilling effect" on our
freedom of expression, which is protected by Article 10 of the
European Convention of Human Rights. The court declined. In fact, it ducked the
question somewhat, disposing of the case without a detailed
analysis of the rule. It could have and should have struck it
down.
The rule concerns time limits for lawsuits. When a libellous
article is published, a stopwatch is started and in both English
and US law, he who's wrongly branded a liar or a cheat must sue
within one year. The deadline exists for public policy reasons and
because, over time, memories fade, notebooks are lost and
journalists change jobs – factors that make late accusations of
defamation rather difficult for publishers to defend.
When it comes to online publications, though, courts on each
side of the Atlantic control their stopwatches in different
ways.
In the US, the courts begin the timer when the article appears
online. In England, they do the same – but they reset the timer
when someone visits the page. They reset it again when the second
visitor arrives and again with the third. Ten years on, the
umpteenth visitor to that page, once again, puts that timer back to
zero. Yet, despite all these false starts, the lawsuit is never
disqualified for being time-barred.
The rule in England dates back 160 years. An article appeared in
a newspaper in 1830 that defamed the Duke of Brunswick. He learned
of that article 17 years later and sent a servant to buy a back
issue from the publisher (and, for good measure, he obtained a
second copy from the British Museum). The court ruled that the
action was not time barred: an act of publication occurred when the
servant took delivery of the paper.
The New York Court of Appeals looked at this ruling in 1948 and
considered it irrational. It made no sense in an era of mass
publication, it said. So the 'Single Publication Rule' was born.
The New York Court of Appeals endorsed that approach again in 2002,
applying its logic to the internet era for the first
time.
In the UK, though, Victorian thinking prevails. The High Court
said in 2001 that every time a customer of ISP Demon Internet
accessed a newsgroup containing defamatory comments, there was a
fresh publication to that customer. The same reasoning was applied
when Russian businessman Grigori Loutchansky sued The Times over
defamatory articles that appeared online some 15 months before his
proceedings began — the case that led to this week's ECHR
ruling.
The UK rule applies off-line as well, but it causes less of a
problem in the print world. People are more concerned by negative
comments that Google reveals in less than a second than they are
about comments languishing in the press archives of a library.
The ECHR extended an olive branch to publishers at the end of
Tuesday's ruling. It said that "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."
That is not a great help, though: lawyers will continue to
advise publishers to err on the side of caution and take down an
article that is the subject of a complaint, because the default
position remains that there is no time bar. Any lawsuit has a
chance; every lawsuit is expensive.
The ECHR has failed to give publishers the confidence they
deserve. Defamation is a justified qualification to our freedom of
speech, but it should not be unlimited. It is right that a victim
of defamatory content can sue the publisher and have the offending
content taken off-line. It is wrong that they can wait forever to
bring that claim.
England's Limitation Act of 1980 defines the 12-month time
limit. It also gives courts discretion to extend that period in
exceptional cases. In exercising that discretion, a court must
consider the length of and the reasons for the delay in suing, says
the Act. A delay is likely to mitigate any damages award.
Switching to a Single Publication Rule would not relieve defamed
individuals of this valuable protection.
There will be times when a web page is defamatory but obscure.
It can languish on the internet, unread by the subject. If the
subject becomes famous and links from more popular sites drive
thousands of people to view that previously unseen page, it is
right that the victim has a right to react. But it is wrong for
someone to know about the page, do nothing for years and then bring
a claim by exploiting a loophole of 19th Century law. Unable to
defend themselves against some such claims, publishers will feel
pressure to settle the case by deleting the page from their
archive, rather than funding a defence. In doing so, a footnote in
history is erased.
I should disclose that I am not independent in this debate. In
January we received a threatening letter from another law firm
about two of the stories in OUT-LAW.COM's archive. The letter said
that the firm's client, a businessman, was defamed by the stories –
both of them written almost seven years previously. It demanded
their removal.
This was the first complaint we had received about these
stories. We did not believe that the articles were defamatory (the
weakness of the case is illustrated in one of the points: "Further,
our client objects to appearing on a website entitled 'Out-Law'
with the obvious insinuations which go with this.") In our view,
the threat was an exercise in revisionism – someone seeking to
cover up a controversial past.
But such threats can be brutally effective. Could they sue us?
Sure, they could have a go, if their client has the money and the
appetite for litigation. The passage of time did not prevent them
having a right to have a go; but in my view it should have.
We capitulated. We removed the stories because we weren't
prepared to invest time and money to reinvestigate and to fight for
two old stories. We did so with much regret.
I have great admiration for The Times in taking its fight so
far. I share its disappointment and frustration in the result.
The Times
reported yesterday that Justice Secretary Jack Straw plans to
publish a consultation on the laws of internet libel. If that is an
opportunity to consign the Multiple Publication Rule to history,
once and for all, publishers should seize it.
By Struan Robertson, editor of
OUT-LAW.COM. The views expressed are the author's own and do not
necessarily represent the views of Pinsent Masons.
