Indefinite liability for online libel must end
Everlasting damnation is Victorian punishment
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Comment The European Court of Human Rights (ECHR) missed an opportunity to kill an absurd libel law this week. That law exposes online news archives around the world to indefinite liability in British courts.
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.
COMMENTS
Ruat coelum
I have this picture of a a lawsuit by a descendant of Amalek, suing the Sovereign (defensor fidei) for publishing and perpetuating libel against his family with every KJV Bible printed since commissioned by King James!
Fiat Justitia, ruat Coelum.
Et cvm spiritvvs Vodka
The quality of Journalism is not straineth
in answer to zebedee:
Let us remember the immortal words of Humbert Wolfe:
.
You cannot hope to bribe or twist (thank God) the British journalist.
But seeing what the man will do
Unbribed, there's no occasion to.
Food for Thought.
While I'm no fan of mainstream media, I am equally as impressed with archaic laws such as this and stupified by those who strive to retain them!
Analysis of the timeline of this law would appear to be the following:
1. The Duke of Brunswick in 1847 learned of a libel levelled against him some 17 years previous, sent his servant to obtain a copy from the publisher and the British Museum (2nd and 3rd "publications") and successfully sued the publisher, which although this article doesn't name, was most probably The Times.
Precedent set.
2. Fast forward 101 years to 1948, when the New York Court of Appeals introduced the "Single Publication Rule" with their decision, into US Law.
Although not explicitly stated, we have to assume (for brevity) that the limitation of one year to act upon a libel was established at the same time or sometime shortly thereafter, in both US & English Law.
What we cannot assume however, is that English law acquired or instituted the Single Publication Law. If it had, this article and our comments wouldn't exist.
3. Moving forward a further 54 years, we find once more that the NYCoA ratifies the 1948 judgement, only this time they reflect upon and incorporate the Internet.
Remember, this was in 2002, a year on from 9/11, which happened in the NYCoA backyard!!
Future historians may well look back and condemn this decision but somehow I doubt it.
4. Rewind to 2001, when the British High Court ruled that every time a defamatory comment was accessed online, it constituted a "new publication".
So, no change from 154 years ago!
Remember, way back then, being "online" was coming to terms with the new fangled thing called a "News-paper".
The Duke of Brunswick didn't get 'with it' but was fortunate (and affluent) enough to send his servant to retrieve the new publications of his "online" world.
5. The Grigori Loutchansky episode only serves to prove that the "one year" rule to act upon a libel is a fallacy today in much the same way it was so many years ago.
6. Having wrote all I have, I would like you to consider the following and decide where it fits in with yester-year and today . . .
Daily Star vs. Jeffrey Archer (Libel: 1987)
Archer was alleged to have had sex with Monica Coghlan. The trial jury found in favour of Archer and awarded him half a million pounds in damages plus costs. On top of that, the Daily Star incurred costs of £1 million and sacked their editor, Lloyd Turner.
One might say, "Fair enough"! Libel claim was brought within the one year limit (which does NOT exist within English Law) and a just result awarded.
Move forward, (SLOWLY), from 1987 towards 2001 and assess this!
If J.A. hadn't brought about his claim of libel back then and waited a number of years (a bit like the Duke of Brunswick) he could have sued many more times over, for each and every "online publication" to the tune of £500,000, each and every time!!!
And then? . . . We run full tilt into reality!! Perjury and Perverting the Course of Justice.
Back in 1987 he said he would "Give the award to charity".
In 2001 he paid back the £500,000 he was awarded to the Daily Star / News of the World, along with the £1 million they incurred in court costs.
Who pays and weeps for Monica Coughlan and Lloyd Turner?
You, Me, Them??
As I said at the beginning: "While I'm no fan of mainstream media, I am equally as impressed with archaic laws such as this and stupified by those who strive to retain them!"
But I remember the victims and I have no association with any of them except my own humanity!
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