Original URL: http://www.theregister.co.uk/2009/03/13/echr_libel_law/

Indefinite liability for online libel must end

Everlasting damnation is Victorian punishment

By OUT-LAW.COM

Posted in Law, 13th March 2009 13:41 GMT

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.

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.

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