Defamation and the internet the multiple publication rule

Cite <blockquote cite='http://writetoreply.org/defamation/the-current-law/#1'>5. The multiple publication rule stems from the 19th century case of Duke of Brunswick v Harmer,1 in which the Duke’s agent bought a back issue of a newspaper published 17 years earlier. The court held that this constituted a separate publication that was actionable in its own right. Under the Limitation Act 1980, each separate publication is subject to a limitation period of one year which runs from the time at which the material is accessed. This principle has been applied in a range of different cases, and was upheld in the context of internet publication by the House of Lords in Berezovsky v Michaels.2 The rule was also upheld by the Court of Appeal in relation to archived material in Loutchansky v Times Newspapers Ltd.3</blockquote> Permalink:
1 5. The multiple publication rule stems from the 19th century case of Duke of Brunswick v Harmer,¹ in which the Duke’s agent bought a back issue of a newspaper published 17 years earlier. The court held that this constituted a separate publication that was actionable in its own right. Under the Limitation Act 1980, each separate publication is subject to a limitation period of one year which runs from the time at which the material is accessed. This principle has been applied in a range of different cases, and was upheld in the context of internet publication by the House of Lords in Berezovsky v Michaels.² The rule was also upheld by the Court of Appeal in relation to archived material in Loutchansky v Times Newspapers Ltd.³

Cite <blockquote cite='http://writetoreply.org/defamation/the-current-law/#2'>6. In Loutchansky, a Russian businessman brought two actions against The Times for libel. The first related to articles published in October 1999, which were subsequently placed on The Times’s online archive and were available for the public to access. The claimant brought a second action in December 2000 (more than one year after the original publication) in relation to the online archive. The Court of Appeal was asked to consider two issues in respect of the second action: the limitation period applicable to archives; and the nature of any privilege that should attach to them.4</blockquote> Permalink:
2 6. In Loutchansky, a Russian businessman brought two actions against The Times for libel. The first related to articles published in October 1999, which were subsequently placed on The Times’s online archive and were available for the public to access. The claimant brought a second action in December 2000 (more than one year after the original publication) in relation to the online archive. The Court of Appeal was asked to consider two issues in respect of the second action: the limitation period applicable to archives; and the nature of any privilege that should attach to them.⁴

Cite <blockquote cite='http://writetoreply.org/defamation/the-current-law/#3'>7. On the issue of limitation the Court held that “it is a well established principle of English law that each individual publication of a libel gives rise to a separate cause of action, subject to its own limitation period.” This follows the authority from Duke of Brunswick v Harmer and subsequent cases. The Times argued that the English courts should follow the approach taken in the United States and recognise a single publication rule. The Court rejected this argument, holding that whilst archives had a “social utility”, it was a “comparatively insignificant aspect of freedom of expression.”5 It accepted that the notion of permitting actions based on fresh disseminations was “at odds with some of the reasons for the introduction of a 12 month limitation period”, but considered that any resulting damages were “likely to be modest.”6</blockquote> Permalink:
3 7. On the issue of limitation the Court held that “it is a well established principle of English law that each individual publication of a libel gives rise to a separate cause of action, subject to its own limitation period.” This follows the authority from Duke of Brunswick v Harmer and subsequent cases. The Times argued that the English courts should follow the approach taken in the United States and recognise a single publication rule. The Court rejected this argument, holding that whilst archives had a “social utility”, it was a “comparatively insignificant aspect of freedom of expression.”⁵ It accepted that the notion of permitting actions based on fresh disseminations was “at odds with some of the reasons for the introduction of a 12 month limitation period”, but considered that any resulting damages were “likely to be modest.”⁶

Cite <blockquote cite='http://writetoreply.org/defamation/the-current-law/#4'>8. On the second issue, whether privilege can attach to an online edition of a publication, the Court of Appeal held that as soon as The Times had become aware of the criticisms of the articles, and had not made any attempt to justify them, it should have drawn readers’ attention to the fact that their truth was disputed. Its failure to do so meant that it was not entitled to rely on any protection by way of privilege attaching to the original articles. However, the appeal was allowed as the Court decided that the initial High Court ruling misapplied the test in relation to qualified privilege for determining whether The Times was under a duty to publish the articles. The case was remitted back to the High Court, which held that The Times had not made out the defence of qualified privilege and found in the claimant’s favour.</blockquote> Permalink:
4 8. On the second issue, whether privilege can attach to an online edition of a publication, the Court of Appeal held that as soon as The Times had become aware of the criticisms of the articles, and had not made any attempt to justify them, it should have drawn readers’ attention to the fact that their truth was disputed. Its failure to do so meant that it was not entitled to rely on any protection by way of privilege attaching to the original articles. However, the appeal was allowed as the Court decided that the initial High Court ruling misapplied the test in relation to qualified privilege for determining whether The Times was under a duty to publish the articles. The case was remitted back to the High Court, which held that The Times had not made out the defence of qualified privilege and found in the claimant’s favour.

Cite <blockquote cite='http://writetoreply.org/defamation/the-current-law/#5'>9. The Times subsequently brought an application before the European Court of Human Rights alleging, inter alia, that the effect of the multiple publication rule breached its right to freedom of expression under Article 10 of the ECHR. The Court published its judgment in the case on 11 March 2009. It held unanimously that there was no violation of Article 10, because the Court of Appeal’s finding that Times Newspapers had libelled the claimant by the continued publication on its internet site of two articles had not represented a disproportionate restriction on the newspaper’s freedom of expression.</blockquote> Permalink:
5 9. The Times subsequently brought an application before the European Court of Human Rights alleging, inter alia, that the effect of the multiple publication rule breached its right to freedom of expression under Article 10 of the ECHR. The Court published its judgment in the case on 11 March 2009. It held unanimously that there was no violation of Article 10, because the Court of Appeal’s finding that Times Newspapers had libelled the claimant by the continued publication on its internet site of two articles had not represented a disproportionate restriction on the newspaper’s freedom of expression.

Cite <blockquote cite='http://writetoreply.org/defamation/the-current-law/#6'>10. The Court observed that in the present case the two libel actions related to the same articles and both had been commenced within 15 months of the initial publication of the articles. The applicant’s ability to defend itself effectively was not therefore hindered by the passage of time. Accordingly, the problems linked to ceaseless liability did not arise. However, the Court emphasised that while individuals who are defamed must have a real opportunity to defend their reputations, libel proceedings brought against a newspaper after too long a period might well give rise to a disproportionate interference with the freedom of the press under Article 10. [1849] 14 QB 185 [↩] [2000] 1 WLR 1004 [↩] 7 [2002] 1 All ER 652 [↩] Qualified privilege grants limited protection on public policy grounds to statements in the media provided that certain requirements are met [↩] Ibid, at 676 [↩] Ibid [↩] </blockquote> Permalink:
6 10. The Court observed that in the present case the two libel actions related to the same articles and both had been commenced within 15 months of the initial publication of the articles. The applicant’s ability to defend itself effectively was not therefore hindered by the passage of time. Accordingly, the problems linked to ceaseless liability did not arise. However, the Court emphasised that while individuals who are defamed must have a real opportunity to defend their reputations, libel proceedings brought against a newspaper after too long a period might well give rise to a disproportionate interference with the freedom of the press under Article 10.

1. [1849] 14 QB 185 [↩]
2. [2000] 1 WLR 1004 [↩]
3. 7 [2002] 1 All ER 652 [↩]
4. Qualified privilege grants limited protection on public policy grounds to statements in the media provided that certain requirements are met [↩]
5. Ibid, at 676 [↩]
6. Ibid [↩]

Tags: Brunswick, Brunswick Corporation, businessman, Court of Appeal, Crimes, Damages, Defamation, English defamation law, European Court of Human Rights, High Court, Law_Crime, online archive, online edition, Reynolds v Times Newspapers Ltd, The Times, The Times Global Broadcasting Co Ltd, Times Newspapers Ltd ., Tort law, United States

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