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Indefinite liability for online libel must end

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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.

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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