Copyright and freedom of expression are balanced in Copyright Directive, says CJEU advisor
Out-Law Guide | 02 Nov 2007 | 8:31 am | 9 min. read
Loutchansky v Times Newspapers Ltd & Others
The Respondent was an international businessman of Russian and Israeli dual nationality. Before December 1994, he was a regular visitor to England and had a large number of personal business contacts here. In that month, the Home Secretary personally directed his exclusion from the UK on the ground that his presence here would not be conducive to the public good. The Respondent had been challenging that decision ever since.
The Times ran articles on 8 September 1999 and 14 October 1999 containing material about the Respondent that the Appellants admitted were defamatory, alleging as they did that the Respondent was involved in Russian crime organisations and money laundering activities. In accordance with the practice of the Times’ web site, these articles had been stored and continued to be available on the web site even after the Respondent’s letter before action of 17 November 1999 and subsequent complaints about the continuing publication of the articles. A qualification was added to the web site on 23 December 2000 in relation to the first article.
In relation to these first claims of defamation the Appellants did not attempt to justify the articles. This was because there was simply no admissible evidence to plead even the lesser ground of justification (justification being a defence to alleged defamation) – that of reasonable grounds for suspicion.
This second action was brought a year after the first. It related to the continuing publication of the articles on the internet and was prompted by the Respondent’s discovery that they were being published without any qualification. The defence adopted was, as in the first action, qualified privilege. In addition the Appellants relied on the fact that it maintained on its web site a publicly available archive of past issues as a service to the general public, both in this country and abroad.
One issue related to the defence of qualified privilege in the second action. The judge at first instance had struck this defence out because the Appellants had no reasonable grounds to contend after the date of the Appellants’ defence in the first action that they remained under a duty to publish these articles over the internet, nor could they sustain a separate argument for a special “archive” privilege. The judge at first instance had said:
“To succeed in a defence of qualified privilege the defendants had to show that they had been under a duty to publish the articles on the internet. Only in exceptional circumstances can such a duty arise if the publisher has no honest belief in the truth of the matter published. No such special circumstances attended the publication on the internet. Mr Brett [in-house lawyer for The Times] had conceded that the defendants had no honest belief in the truth of what they had published. This was fatal to a defence of qualified privilege.”
Another issue that arose related to the Limitation Act 1980 section 4A, which makes the limitation period for defamation one year. Section 32A provided that a court could disallow section 4A, having regard to the degree to which the operation of section 4A prejudiced the claimant and the degree to which any decision of the court would prejudice the defendant. The question centred on how these provisions should apply to publication on the internet. The Appellants wanted to amend their pleading to enable them to advance the case that the limitation period began to run as soon as the allegedly defamatory article was first posted on the web site and that subsequent occasions upon which the web site was accessed did not give rise to separate causes of action, each with its own individual cause of action.
The judge at first instance refused leave to amend because he thought that the Appellants’ argument was unsustainable.
The Appellants’ counsel conceded that success for the Appellants would involve the creation of new law. It is a well established principle of English defamation law that each individual publication of a libel gives rise to a separate cause of action, subject to its own limitation period. In Godfrey v Demon Internet Limited  QB 201, the respondent ISP had received and stored on its news server an article defamatory of the respondent. It was held in Godfrey that whenever the defendant’s news server transmitted a defamatory posting then there was a publication of that posting. That publication was to any subscriber who accessed the newsgroup containing that posting. Thus, every time one of the defendant’s customers accessed soc.culture.thai and saw the posting defaming Dr Godfrey there was a publication to that customer. The Godfrey judgment is consistent with previous law, as illustrated by Duke of Brunswick v Harmer  14 QB 185 and indeed it is an entrenched feature of English law.
The Appellants suggested that the law should be changed. The argument was that keeping back numbers of a newspaper on a web site meant that publication would happen every time a user accessed the back issue. This would give rise in effect to an indefinite limitation period and run counter to the one year limitation period introduced by section 4A for libel and slander. That there is social utility in having internet access to such materials (as opposed to buying back copies or visiting libraries), and the law should evolve to reflect these conditions.
The Appellants contended that section 4A should be interpreted in a different way and the one year limitation period, which under section 4A started from the date on which the cause of action accrued, should be taken to mean the date of initial publication. This would introduce into English law a principle of US law known as the single publication rule. The Appellants contended that such a rule should be applied where the issue was one of limitation in relation to an action commenced in this jurisdiction.
The Appellants observed that the availability of archives on a web site made the position much more acute than is the position with a hard copy library, since the materials were so much more readily accessible.
The Appellants also invoked Article 10 of the Convention on Human Rights. They argued that if defamation actions were permitted more than a year after the initial publication, this would operate as a restriction on a writer’s freedom of expression. By the Human Rights Act 1998, to be justified, any curtailment of freedom had to be convincingly established by a compelling countervailing consideration, and the means employed had to be necessary and proportionate to the ends sought to be achieved.
In the Appellants’ view, maintaining an archive accessible on the internet of back issues was a very valuable service to the public. If it rendered a newspaper liable to claims in defamation for years and even decades after the initial hard copy and internet publication, this rule would affect the readiness of newspapers to provide such a service at all and would lead to the limitation of freedom of expression.
Against this, the Respondent argued that Article 10 itself recognised that the right of freedom of expression could properly be restricted for the protection of the reputation or rights of others. In this case, the Appellants could have protected themselves by retaining the articles on the web site but with a suitable qualification.
The maintenance of archives is a useful social utility, but old news is stale news, and its publication cannot rank in importance with the dissemination of contemporary material. If a defendant has archive materials that are or may be defamatory, an appropriate notice warning against treating it as the truth will normally remove the sting from the material. In any case, the scale of such internet publication of archive material and any resulting damage is likely to be modest compared with the original publication, and in the present case the action based on internet publication was subsidiary to the main action.
It is not necessary for a newspaper raising a qualified privilege defence along the lines of Reynolds v Times Newspapers Ltd & Ors  3 WLR 1010 to establish an honest belief in the truth of the matter published. Simply because Mr Brett (the appellant’s in-house solicitor) made no positive assertion of honest belief did not mean that it could be deduced that he had no such belief. The judge’s primary reason for striking out the defence was therefore not well founded.
However, a subsidiary reason for the judge’s decision to strike out was that the Appellants had repeatedly republished on the internet defamatory material that was not only the subject of a defamation action but, in which they were not seeking to justify the truth of the allegation. The Appellants had not published any qualification to draw the reader’s attention to the fact that the truth of the articles was hotly contested. The judge was right to consider that the circumstances of the republication of back issues of the Times on the internet were materially different from those at the time of the original publication of the hard copy newspaper.
The failure to attach any qualifications to the articles published over the period of a year on the Times’ web site could not be described as responsible journalism. It could not be argued that the Times had a Reynolds duty to publish those articles in that way without qualification.
The judge was therefore right to strike out the qualified privilege defence in the second action, but not for the primary reason he gave.
This case raised a number of issues, but it has been reported only to the extent that it impacts the law relating to the internet.
One of the early concerns of the internet was the possibility of defamation – the cloak of anonymity combined with the potentially worldwide dissemination of harmful statements seemed an all too obvious peril. Time has done nothing to diminish those fears and there have been some high profile cases highlighting the dangers of the internet in this context.
Such was the apprehended fear that the Defamation Act 1996 sought to deal with some of the more obvious dangers for ISP’s and others engaged with online activities. Similarly, the Electronic Commerce Directive has added its twopennyworth on the subject of ISP liability.
This case illustrates another danger for those who host web sites. It is common for newspapers and other publications to store archives of their magazines. As anyone who has tried to obtain a past copy of a hard copy magazine will testify, this is a tremendous step forward. But what if the original text was defamatory? Where does the “duty” to publish end and the duty not to wrong someone begin? In particular what is the effect of the traditional rule of English law that a publication takes place every time the statement is issued to a third party, including the author, editor, printer – even the vendor of a newspaper on the high street?
It is true that English law drew a distinction between someone who published and someone who just facilitated the publication, as it was expressed. This distinction has given rise to some interesting questions. But the essential doctrine remained: any “publisher” was caught by the rule.
The Defamation Act 1996 came to the rescue of many involved in disseminating materials on the internet. Section 1 of this Act provides a defence for anyone who can show that they were not an author, editor or publisher, as defined in that section. Subsection (3) gives some indicative examples of who falls outside the definition of publisher, and many involved in disseminating materials over the internet may be able to bring themselves within one of the definitions or argue by analogy that they should not be considered a publisher within section 1.
The difficulty is in section 17(1), which provides some definitions, including as follows:
““publication” and “publish”, in relation to a statement, have the meaning they have for the purpose of the law of defamation generally, but “publisher” is specially defined for the purposes of section 1”
So the common law rule about publication remains, with its distinction between publishers and facilitators. The Appellants sought to overturn this rule in this appeal. However, the traditional rule remains after the Court of Appeal’s decision. The way out for those keeping such archives is the indication given in the judgment that proper qualification of any defamatory article may, in the proper case, be enough to avoid liability.
The important point to take away from this judgment is the vigilance required on the part of newspapers and others who maintain archives. Section 1 of the Defamation Act 1996 to some extent encouraged those who could exclude themselves from the definition of “publisher” to take a “hands-off” approach to vetting material for possible defamation, as the more involved in content you were, the more you could be said to be a “publisher”. In some cases, this may still be good advice, but this case shows that this is not a universally applicable rule of thumb.
Copyright and freedom of expression are balanced in Copyright Directive, says CJEU advisor