Tag Archive for 'Crimes'

Questionnaire

Published on November 17, 2009 in Consultations. Closed Tags: , , , , , .

We would welcome responses to the following questions set out in this consultation paper.

1. Taking into account the arguments set out above, do you consider in principle that the multiple publication rule should be retained? If not, should a single publication rule be introduced? Please give reasons for your answers.

2. If the multiple publication rule were to be retained should there be an obligation to place a notice on an archive once the person responsible has been notified that the material is subject to defamation proceedings?

3. Do you agree that if a single publication rule were to be introduced, it should apply to all defamation proceedings, not just those relating to online publications?

4. If a single publication rule were introduced,

a) should it be made obligatory to remove or amend material held in other formats under the control of the same publisher in the event of a successful defamation action against the original publication of the material?

b) should there be a provision that, where defamatory material is re- transmitted in a new format, the single publication rule would only protect the previous publisher and not the publisher of the new article?

c) if neither of these are considered appropriate, how could claimants’ interests be protected?

d) should the existing ‘voluntary’ obligations to correct inaccurate and misleading material be strengthened? If so, how should this be done? Please give reasons for your answers.

5. a) If a single publication rule were introduced, do you consider that the approach taken in the United States in respect of what constitutes a new publication of hard copy material would be workable? If not, what changes should be made?

b) Should online content that has been modified be regarded as a new publication?

c) Are there any other issues that would need to be resolved in establishing a single publication rule? Please give reasons for your answers.

6. As an alternative to introducing a single publication rule, do you consider that the Defamation Act 1996 should be amended to extend the defence of qualified privilege to publications on online archives outside the one year limitation period for the initial publication, unless the publisher refuses or neglects to update the electronic version, on request, with a reasonable letter or statement by the claimant by way of explanation or contradiction? Please give reasons for your answer.

7. Do you agree that if the multiple publication rule is retained, the limitation period should remain at one year from the date of publication (with discretion to extend)? If not, what limitation period would be appropriate and why?

8. a) If a single publication rule were introduced, should the limitation period of one year run from the date of publication (with discretion to extend) or the date of knowledge (without discretion to extend)? If the latter, should there also be a ten year long-stop from the date of publication?

b) If you consider that an alternative approach would be appropriate, what should this be and why?

Thank you for participating in this consultation exercise.

At this point, the original consultation document provides contact details and ways to respond to the consultation.

Key issues for consideration

Published on November 17, 2009 in Consultations. Closed Tags: , , , , , , , , , , .

Date of publication or date of knowledge

36. There are a number of key issues which are relevant when considering the merits of these options. The first of these is whether the limitation period should run from the date of publication of the allegedly defamatory material or the date the claimant becomes aware (or could reasonably be expected to become aware) that a cause of action exists (the “date of knowledge”). Using the date of knowledge could be fairer to claimants as time would not start to run until they know, or could reasonably be expected to know, of the existence of the facts that form the basis for the action. This would mean that claimants would not potentially find themselves barred from bringing an action before they have become aware of the allegedly defamatory material. In the event that the multiple publication rule were abolished, this would go some way towards reducing any disadvantage to claimants arising from the adoption of a single publication rule.

37. However, there could be significant disadvantages if the limitation period were to run from the date of knowledge, as the length of time for which the defendant is potentially vulnerable to claims could be substantially greater, and more difficult to ascertain, than if a ‘date of publication’ approach is used. Although in practice in most cases the date of knowledge would be unlikely to differ substantially from the date of publication, in some instances it could create uncertainty and potentially open-ended liability. This could lead to evidential difficulties if the claimant only became aware of the allegedly defamatory material some time after its publication. It could also create a risk of longer and more complex litigation where there was a dispute over exactly when the claimant became or should have become aware of the material.

38. Retaining the current approach of using the date of publication would give greater certainty and avoid any possible evidential problems and disputes over the date of knowledge. In the event that the multiple publication rule is retained, the resulting benefits for claimants would appear to negate the need to safeguard further claimants’ position by moving to a ‘date of knowledge’ approach. However, if a single publication rule were to be adopted, a date of publication approach could mean that claimants may find themselves barred from bringing an action before they have become aware of the allegedly defamatory material, without any possibility of an action if the material were on an archive.

The need for a discretion

39. As noted above, section 32A of the Limitation Act 1980 currently gives the court a discretion to extend the limitation period where it is equitable to do so. When deciding whether to exercise this power, the court is required to have regard to the length of, and reasons for, the delay on the part of the claimant. Where the delay was due to the claimant being unaware of all or any of the facts that are essential to the cause of action, it is relevant to consider the date on which the facts became known to him and whether in the circumstances he acted promptly and reasonably once he knew that he might have a cause of action. Regard should also be had to the likely unavailability or lack of cogency of evidence by virtue of the action having been brought beyond the normal limitation period. Examples of instances where extensions have been respectively denied and allowed are the cases of Steedman and Others v British Broadcasting Corporation ((Steedman and Ors v British Broadcasting Corporation [2001] EWCA Civ 1534)) and Wood v West Midlands Police. ((Wood v West Midlands Police [2004] EWCA Civ 1638))

40. If a ‘date of publication’ approach were retained with either a multiple publication rule or a single publication rule, it would appear appropriate for the court to continue to have a discretion to allow claims outside the limitation period. If a single publication rule were adopted, this could go some way to remedy the difficulty mentioned above of claimants finding themselves barred from bringing an action before they have become aware of the allegedly defamatory material. It could be argued that a discretion would provide an effective means of ensuring that claims could proceed where it was reasonable to do so, and that claimants would not be significantly disadvantaged should the multiple publication rule cease to exist. On the other hand, the discretion in section 32A has been used sparingly in exceptional circumstances, and it could be argued that it would not provide sufficient protection to claimants in the absence of the multiple publication rule.

41. If it were decided that the limitation period should run from the date of knowledge, it would not appear appropriate for there to be a discretion as well, as this would be likely to compound any uncertainty and potential difficulties for defendants which might arise from the date of knowledge.

Length of limitation period

42. Another issue for consideration is whether the limitation period should remain at one year or be extended to three years from either the date of knowledge, as recommended by the Commission, or the date of publication (or to the intermediate period of two years).

43. Arguments in favour of retaining the one year period include the fact that the burden currently rests on the defendant to prove that the publication of the allegedly defamatory material is justified, and that a long limitation period could cause difficulties in producing evidence to do this. On the other hand, the Commission expressed concern that a one year period may not give claimants sufficient time to prepare a claim properly. In addition, it considered that it would be desirable to remove the anomalies between the limitation period in England and Wales and that in Scotland (which currently has a limitation period of three years from the date of knowledge) and between the limitation period for defamation and that for malicious falsehood or negligent misstatement.

44. The Commission took the view that on balance a limitation period of three years from the date of knowledge would be appropriate. However, the one year period has now been in operation for several years and does not appear to have caused significant difficulties. As noted above, the section 32A discretion gives some flexibility where the court considers it just for the period to be waived. In addition, we are not aware of any evidence that the difference in the limitation period between England and Wales and Scotland has in practice caused any problems. In the event that the multiple publication rule is retained, there would not therefore appear to be any strong justification for changing the limitation period from one year from the date of publication.

45. If a single publication rule were adopted, it may be considered that a longer limitation period from either the date of publication or the date of knowledge would help to offset any potential disadvantage to claimants. However, a longer period would be likely to increase the potential for evidential difficulties and disputes. This would be exacerbated if a ‘date of knowledge’ approach were used because ‘knowledge’ may only occur some time after publication. Also, in the absence of any evidence that the current one year period is causing significant problems, it is unclear what benefit a longer period would in itself provide.

The need for a long-stop period

46. The Commission’s proposal to prevent defendants being subjected to a potentially open-ended liability where the limitation period runs from the date of knowledge was to have an additional ten year long-stop period that would run from the date of publication. This would have the advantage of providing some degree of certainty for defendants without significantly disadvantaging claimants. However, the period within which potential actions could be brought would still be a long one.

47. The Commission noted in its 2002 scoping study that “although the long-stop would fit well with a single publication rule, it is ineffective when combined with the present “multiplication rule”, because it would start to run each time material was downloaded”. A long-stop would clearly also not be relevant where a date of publication approach is used.

Conclusion

48. In the light of the arguments discussed above and in the absence of evidence of hardship or difficulties with the present law, the Government considers that if the multiple publication rule were retained, the limitation period should not be extended from the current period of one year from the date of publication (with discretion to extend). If a single publication rule were to be introduced, the Government considers that the arguments for extending the limitation period beyond one year are not strong. However, the questions of whether a ‘date of publication’ or ‘date of knowledge’ approach should be used, and whether the latter should be accompanied by a ten year long-stop from the date of publication, appear more finely balanced.

In the original consultation document, Questions 7 -8 are listed here.

Interaction with the limitation period for defamation actions

Published on November 17, 2009 in Consultations. Closed Tags: , , , , , , , , , , , , .

Introduction

30. Consideration of the merits of altering the multiple publication rule should take into account the other rules governing the limitation period for defamation actions. Under section 4A of the Limitation Act 1980 (as amended by the Defamation Act 1996), the current limitation period for bringing an action for defamation or malicious falsehood is one year from the date on which the cause of action accrued (i.e. the date of publication of the allegedly defamatory material). Section 32A of the amended Act gives the court a discretionary power to disapply this time limit if it is equitable to do so.

31. In its 2001 report on Limitation of Actions ((Report No 270, http://www.lawcom.gov.uk/docs/lc270(2).pdf)) , the Law Commission recommended changing the limitation period for defamation actions to three years from the date of the claimant’s knowledge of the defamatory statement, with a long-stop period of 10 years from the date that the cause of action arose, whilst removing the discretion in section 32A of the 1980 Act. The Government intends to consult on draft legislation arising from the Commission’s report but considers that because of the link between the limitation period for defamation claims and issues relating to the multiple publication rule the two issues are best considered together in this paper.

32. Prior to the 1996 Act, the limitation period for defamation actions in England and Wales was three years from the date of publication. The rationale for the reduction to one year lay in the recommendations of the Supreme Court Procedure Committee chaired by Lord Justice Neill, which stated that reduction was warranted on account of “the general recognition that claims to protect one’s reputation ought to be pursued with vigour, especially in view of the ephemeral nature of most media publications.” The Committee further stated that the media considered that “the same reasoning would justify an even shorter period. Memories fade, journalists and their sources scatter and become, not infrequently, untraceable. Notes and other records are retained for only a short period, not least because of limitations on storage.”

33. The Committee suggested that it would only be in the most exceptional cases that a claimant could be justified in delaying bringing an action for more than a year. It took the view that the court should, for example, be sympathetic if the delay was caused by a genuine inhibition from suing, and that a judicial discretion to extend the period would be the answer for the very few claims that, with justification, were not started within a year. However, the Committee could not have anticipated the rapid advances in technology that have created the need for this consultation. With the advent of the internet, it is no longer accurate to say that most publications are ephemeral, as virtually any material is immediately and easily accessible for a potentially unlimited period. It is also no longer the case that storage is limited now that information can be easily stored on small disks, or indeed, online.

34. The Commission’s report on Limitation of Actions did not expressly consider the implications relating to the internet. Its 2002 Scoping Study looked again at the issue in that context and reiterated the case for the proposed increase in the limitation period. It argued that the current law combining the multiple publication rule with a short limitation period is disadvantageous for both claimants and defendants.

Options

35. A central aim of limitation periods is to balance the interests of potential defendants, who should not be expected to have the threat of proceedings hanging over them for a lengthy or indeterminate period, with the interests of claimants, who need time to establish and prepare their cases. A range of possible permutations exist in assessing the appropriate limitation period to adopt, depending on whether the multiple publication rule is retained or a single publication rule introduced. In the light of the Commission’s recommendation the following appear to be the main options available (although an intermediate period of two years would also be possible):

• One year from the date of publication with discretion to extend (i.e. the current position)

• Three years from the date of publication without discretion to extend

• Three years from the date of publication with discretion to extend

• One year from the date of knowledge of the publication without discretion to extend

• One year from the date of knowledge with discretion to extend

• One year from the date of knowledge with a 10 year long-stop from the date of publication

• Three years from the date of knowledge of the publication without discretion to extend

• Three years from the date of knowledge with discretion to extend

• Three years from the date of knowledge with a 10 year long-stop from the date of publication (as proposed by Law Commission)

Extending qualified privilege to material on online archives in certain circumstances

Published on November 17, 2009 in Consultations. Closed Tags: , , , , , , , .

25. It has been suggested that rather than introduce a single publication rule, another possible approach would be to amend the Defamation Act 1996 to prevent actions in relation to publications on online archives outside the one year limitation period for the initial publication, unless the publisher refuses or neglects to update the electronic version, on request, with a reasonable letter or statement by the claimant by way of explanation or contradiction.

26. This would reflect the views expressed by the European Court of Human Rights in Times Newspapers v The UK, which recognised the important role played by online archives in preserving and making available news and information and acting as an accessible and free source for education and historical research, but emphasised the duty of those responsible for maintaining archives to ensure the accuracy of information contained therein. It would also reflect the earlier judgment of the Court of Appeal that the responsible maintenance of archives should lead to appropriate warnings or corrections being attached to potentially defamatory material.

27. This approach would require primary legislation, and could perhaps be addressed by an amendment to Section 15 of, and Schedule 1 to the Defamation Act 1996, which deals with the circumstances in which qualified privilege may attach to reports or statements on issues which are of public concern and the publication of which is for the public benefit. This could designate the publication of a report or other statement on an online archive as a statement which is privileged, subject to explanation or contradiction, where the material in question was first published more than one year ago.

28. Appropriate provisions would need to be drafted to ensure that qualified privilege did not extend to material which had remained on the archive despite having already been the subject of successful litigation, or to material which was the subject of ongoing litigation but an appropriate warning had not been posted on the archive.

29. The Government would welcome views on this suggested approach.

In the original consultation document, Questions 1 – 6 are listed here.

Arguments for and against a single publication rule

Published on November 17, 2009 in Consultations. Closed Tags: , , , , , , , , , , , , , , , , , , .

18. A possible alternative to the multiple publication rule would be to adopt a single publication rule. This would mean that instead of the limitation period running from the time of each publication of the defamatory material, it would run from the date of the first publication, even if copies of the material continued to be made and re-published years later. This would also mean that as regards defamation claims brought in England and Wales a claimant would be limited to bringing only one action in relation to particular defamatory material. It would prevent the bringing of multiple claims in the way that is possible at present. However, any such rule would not affect the possibility of a claimant suing abroad in respect of the publication of the same material in one or more foreign jurisdictions.

19. A single publication rule would provide clarity and prevent the possibility of open-ended liability. It would also remove some of the potential obstacles presented to defendants by the multiple publication rule, such as the possibility of having to mount a defence against an old claim. However, while there would be significant advantages for the defendant, a single publication rule could restrict the claimant’s ability to secure redress, particularly in situations where he or she was unaware of the original publication. This could be a significant disadvantage in respect of material published online as it would mean that if the claimant did not bring an action within the limitation period (for whatever reason), the defamatory material could remain accessible indefinitely. Even if a successful action was brought, it is possible that the defamatory material could remain in the public domain and the claimant could not bring a further action in respect of that material against the same publisher.

20. In these circumstances, a claimant may be further disadvantaged as there would no longer be any incentive on the host of defamatory material to remove or amend it, since there would be no risk of an action being brought against them. Currently, the failure to remove the material or attach a notice to it once the host became aware of it or its potentially defamatory nature would effectively lead to a new cause of action in respect of each ‘publication.’ ((See, Byrne v Deane [1937] 1 KB 818, 837-8)) This would cease to be the case should a single publication rule be adopted. One possible way of addressing this could be to provide that if material were found to be defamatory in one format (e.g. the print edition of a newspaper) then it would be obligatory for the material to be amended or removed where it was held in other formats under the control of the same publisher. Another option might be to provide that, where material is re-transmitted in a new format (i.e. a new article is written making use of a link to or a quotation from the original material) then any single publication rule would only protect the previous publisher and would not protect the publisher of the new article.

21. There is currently an obligation placed on the press ((See, the Press Complaints Commission Code of Practice, http://www.pcc.org.uk/cop/practice.html, paragraph 1)) and broadcast media ((Section 319 of the Communications Act 2003, through the Ofcom Broadcasting Code and the BBC producer’s guidelines)) to correct inaccurate and misleading material, which means that untrue defamatory material should be removed. However, adherence to the Press Complaints Commission (PCC) Code is purely voluntary, and although there is a statutory obligation on the broadcasting media, the internet is specifically excluded. This means that the controls to which ISPs are subject are entirely voluntary and codes of conduct apply only where the ISP signs up with an organisation such as ISPA ((http://www.ispa.org.uk/about_us/page_16.html)) or in situations where the PCC Code may apply. If a single publication rule were to be adopted it could therefore be necessary to consider whether there was a need to strengthen these provisions

22. It would also be necessary to consider what would constitute a new publication. In relation to hard copy publications, in the United States it has been held that morning and afternoon editions of newspapers constitute separate publications, ((Cook v Conners 1915 215 NY 175)) as do hardback and paperback editions of a book. ((Rinaldi v Viking Penguin, Inc (1981) 52 NY2d 422)) However, although the same previously published article appearing in the next edition of a monthly magazine will be a separate publication, the reprinting of a magazine edition in response to public demand does not constitute a new publication. ((Restatement (Second) of Torts, s 577A, illustrations 5 and 6))

23. In addition, there would be a need to consider whether online material that has been modified should be classified as a new publication. This issue was considered in relation to a website in the United States in Firth v State of New York. (((2002) NY int 88)) This case concerned a report published at a press conference which was then placed on the internet the same day, but the claim was not filed for over a year. It was held that the limitation period ran from the time that the article was placed on the website, and that each “hit” on the website did not amount to a new publication. It was also held that unrelated modifications made to other parts of the site were irrelevant and did not create a new publication.

24. The adoption of a single publication rule would also impact on material published offline as, if an action had already been brought in relation to material published online, it may prevent further action being brought in relation to hard copy material. It would not appear appropriate for any change to apply only to online archives, as this could cause confusion and create unfairness, as the rights of claimants and defendants would differ according to the means by which the defamatory material was accessed. Any changes made to the law purely to take account of the issues arising from online archives could have undesirable consequences and affect areas of the law that currently operate without problems. The Government therefore believes that any change to the law to introduce a single publication rule would need to apply to all defamation proceedings.