Out-Law News | 17 Sep 2009 | 3:58 pm | 3 min. read
Defamation law currently states that someone has the right to sue every time defamatory material is published. This means that publishers could be liable many times over for the online publication of an article if a court agrees that the mere delivery of a web page to a reader counts as publication.
"Part of the law on defamation originates from the 1840s, long before the internet arrived and changed the way that opinions and comment are often communicated," said a statement from the Ministry of Justice, which has launched a consultation on the proposal.
"Existing defamation law needs to be updated so it is fit for the modern age, and it is important we listen to views on the best way to achieve this," said Justice Secretary Jack Straw. "Freedom to hold and express opinions is a right that is vital to democracy, as is respect for the rights and freedoms of others. How these principles are balanced in the fast-changing internet age is a fascinating debate."
The Government's consultation said that the current law causes problems for publishers.
"The effect of the multiple publication rule in relation to online material is that each 'hit' on a webpage creates a new publication, potentially giving rise to a separate cause of action, should it contain defamatory material," it said. "Each cause of action has its own limitation period that runs from the time at which the material is accessed.
"As a result, publishers are potentially liable for any defamatory material published by them and accessed via their online archive, however long after the initial publication the material is accessed, and whether or not proceedings have already been brought in relation to the initial publication," it said.
The Government proposes changing the law so that a 'single publication' rule applies. "A possible alternative to the multiple publication rule would be to adopt a single publication rule," said the consultation. "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."
"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," it said.
The consultation recognised, though, that changnig to a single publication rule could undermine the rights of people who have been defamed. The internet had to be a factor in assessing their rights too, it said.
"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," it said. "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."
The Government will also consider an intermediate approach which would keep the multiple publication rule but allow online archives a special status so that publication in them could not form the basis of action after a year has passed from initial publication.
The Times newspaper took a case to the European Court of Human Rights arguing that the multiple publication rule was so onerous a burden for newspapers in the internet age that it had a 'chilling effect' on their right to free speech, as guaranteed by the European Convention on Human Rights, which the Court enforces.
The Court, though, ruled that a precedent from the 19th century involving a servant of the Duke of Brunswick looking up an article in a library forming the basis of a defamation suit meant that UK law did not breach the Times's rights.
"The finding by the domestic courts in the second action that the applicant had libelled the claimant by the continued publication on the Internet of the two articles was a justified and proportionate restriction on the applicant's right to freedom of expression," said the Court in March of this year. "There has accordingly been no violation of Article 10 of the Convention."
George Lubega, a partner of Pinsent Masons, the law firm behind OUT-LAW.COM, said that while it was good to see the Government taking action on some of the defamation problems posed by the internet, there are others it could also be tackling.
"For some time the internet has presented a difficult challenge to courts and practitioners because, for example, internet publications ignore national boundaries and because it is almost impossible to identify the readership of an internet publication," he said.
"Any move to update and rationalise the law sensibly is to be welcomed. However, while this consultation is part of a wider reform of defamation law, it is limited to questions of multiple publication and the time limit for bringing claims, so it does not go far enough to foreshadow changes which will deal comprehensively with the problems posed by the internet," said Lubega.
The consultation is open until 16 December.