Second internet libel is no restriction on newspapers

March 11, 2009

Second internet libel is no restriction on newspapers

European Court of Human Rights
Published March 11, 2009

Times Newspapers Limited (Nos 1 and 2) v United Kingdom (Applications
Nos 3002/03 and 23676/03)
Before L. Garlicki, President and Judges Sir Nicolas Bratza, G.
Bonello, L. Mijovic, P. Hirvelä, L. Bianku and N. Vucinic Section
Registrar L. Early
Judgment March 10, 2009

The European Court of Human Rights held, unanimously, that a court’s
finding that Times Newspapers Ltd had libelled G. L. by the continued
publication on its internet site of two articles was not a
disproportionate restriction on the newspaper’s freedom of expression,
as guaranteed by article 10 of the European Convention on Human
Rights.

The applicant, Times Newspapers Ltd, was the owner and publisher of
The Times, registered as a newspaper in England. It published two
articles, on September 8, and October 14, 1999, respectively,
reporting on a money-laundering scheme carried out by G. L., whose
name was set out in full in the original article. Both articles were
uploaded on to The Times website on the same day as they were
published in the paper version of the newspaper.

In December 1999, G. L. brought proceedings for libel against the
Times Newspapers Ltd, Mr Peter Stothard, its Editor, and Mr David
Lister and Mr James Bone, the two journalists who signed the two
articles printed in the newspaper.

The defendant did not dispute that the articles were potentially
defamatory but contended that the allegations were of such a kind and
seriousness that it had a duty to publish the information and the
public had a corresponding right to know.

While the first libel action was under way, the articles remained on
The Times website, where they were accessible to internet users as
part of the newspaper’s archive of past issues.

In December 2000, G. L. brought a second action for libel in relation
to the continuing internet publication of the articles.

Following that, the defendant added a notice to both articles in the
internet archive announcing that they were subject to libel litigation
and were not to be reproduced or relied on without reference to TNL
legal department.

The defendant subsequently argued that only the first publication of
an article posted on the internet should give rise to a cause of
action in defamation and not any subsequent downloads by internet
readers. Accordingly, the second action had been commenced after the
limitation period for bringing libel proceedings had expired.

The court disagreed, holding that, in the context of the internet, the
common-law rule according to which each publication of a defamatory
statement gave rise to a separate cause of action meant that a new
cause of action accrued every time the defamatory material was
accessed.

The defendant appealed, arguing that the application of the common-law
rule to internet publications gave rise to ceaseless liability of
newspapers and could ultimately have a chilling effect on their
readiness to provide internet archives and thus limit their freedom of
expression.

The Court of Appeal (The Times December 7, 2001) dismissed the appeal
stating that the maintenance of archives was a relatively small aspect
of the freedom of expression and that it need not be inhibited by the
law of defamation as the publication of a notice warning readers
against treating potentially defamatory material as truth would
normally remove any sting from the material.

On April 30, 2002, the House of Lords refused leave to appeal.

Relying on article 10, guaranteeing freedom of expression, TNL
complained that the internet publication rule breached its freedom of
expression by exposing it to ceaseless liability for libel.

The European Court of Human Rights noted that while internet archives
were an important source for education and historical research, the
press had a duty to act in accordance with the principles of
responsible journalism, including by ensuring the accuracy of
historical information.

Further, the Court observed that limitation periods in libel
proceedings were intended to ensure that those defending actions were
able to defend themselves effectively and that it was, in principle,
for contracting states to set appropriate limitation periods.

The Court considered it significant that although libel proceedings
had been commenced in respect of the two articles in question in
December 1999, no qualification was added to the archived copies of
the articles on the internet until December 2000.

The Court noted that the archive was managed by the applicant itself
and that the domestic courts had not suggested that the articles be
removed from the archive altogether.

Accordingly, the Court did not consider that the requirement to
publish an appropriate qualification to the internet version of the
articles constituted a disproportionate interference with the right to
freedom of expression. There was accordingly no violation of article
10.

Having regard to that conclusion, the Court did not consider it
necessary to consider the broader chilling effect allegedly created by
the internet publication rule.

It none the less 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 therefore not
hindered by the passage of time. Accordingly, the problems linked to
ceaseless liability did not arise.

However, the Court emphasised that while individuals who were defamed
had to 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 of the Convention.

http://business.timesonline.co.uk/tol/business/law/reports/article5883783.ece

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WM
www.critest.com
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