Times Newspapers v UK: libel on the interweb

Last week in Strasbourg, the Times lost its claim in the European Court of Human Rights that the way libel law in the UK applies to online newspaper archives breaches the right to freedom of expression under article 10 of the European Convention.

The background to this is a libel case brought against the Times by the Russian businessman Grigori Loutchansky, who complained first about articles published in the newspaper itself, and then, over a year later, about the same articles which had for all that period been available on the Times‘s online archive. Although in principle a libel claim must be brought within a year of publication, a well-established principle in libel law – the “internet publication rule” applied by the Court of Appeal (see paras. 51-76 of the judgment) when the case was before the English courts – means that every time a website is accessed, a separate publication occurs. So the one year limitation period is constantly re-started each time a visitor views the relevant page – and Loutchansky was in time to sue.

The Times objected, arguing that this “internet publication rule” means newspapers with online archives are exposed to potential libel claims for ever in relation to any individual article. They argued that this has a chilling effect on expression: newspapers can never be free of the fear someone will sue them for content placed online perhaps many years ago. The ECtHR, though, felt no need to rule on the principle raised by the Times. On the particular facts of the case, the court in effect suggested the Times could have avoided the second claim had it published earlier a qualifying statement with the archived articles, and that the delay did not prejudice the Times because it was in any case defending the “hard copy” claim; in those circumstances, libel law did not disproportionately interfere with its freedom of expression. Although the court did suggest libel proceedings brought after a long time could give rise to a disproportionate interference with press freedom, there was no such breach here. The internet publication rule survives.

I agree with critics like Matt Wardman that the law in this area needs review: the internet publication rule seems to make a nonsense of section 4A of the Limitation Act 1980, which sets the time-limit for libel actions at a year. But I think the European Court got this judgment right; we should not simply move to a “single publication rule” as in the United States, according to which the limitation period starts when an article is first uploaded onto a website. That wouldn’t work fairly in the context of our current limitation system.

Libel law isn’t popular, and it has often been abused, but it’s worth reminding ourselves why it exists: newspapers shouldn’t be able to publish damaging lies about people with impunity, for instance, false accusations that someone is a Nazi or a rapist. If it’s wrong for a newspaper to distribute such lies on paper, then it must also be wrong for those same lies to be published online; and while, looking at the facts of this case it’s easy to sympathise with the Times, we also need to think about other potential sets of facts, like the blameless teacher who finds out that a post on some obscure blog from years ago accuses them of sexually abusing their pupils. I don’t think it’s obvious that someone who realises that lies like that appear permanently on a website should lose all rights if they happen not to have noticed the site, even for some years. I realise that, according to the Times ‘s argument, section 32A of the Limitation Act would help by permitting action after the one-year time limit has passed, where the courts think that’s equitable. But that would simply turn the one-year time-limit into a six-year one, meaning my imaginary teacher would have no right to complain about a blog post from early 2003, if he or she discovered it now. To turn the Times‘s argument back on itself, the teacher would not just be at risk, but would actually be lied about for ever, with no comeback. This can’t be the answer to the Times‘s problem.

So Strasbourg was right to be wary of going beyond the facts of this case in order to condemn the internet publication rule, which may in other cases be necessary to protect legitimate rights. What we need is not simply a change to the single publication rule but new, flexible limitation rules that recognise some web publications are more obscure than others, and that require action quickly where a claimant is aware of an internet publication while permitting claims, even after a long time-lapse, if an alleged libel has genuinely just come to light. Let’s hope something like that emerges from the review Jack Straw has announced.