The internet never forgets. Internet libel and the permanence of content appearing on the web has given rise to a large number of lawsuits against newspapers and other publishers of material online.
In traditional libel actions plaintiffs must file suits within a year of the date of the offending publication, otherwise their actions will be statute barred.
However, a 160 year old English precedent, when applied to Internet publishing, means that each separate act of the downloading an article on the internet triggers a fresh limitation period.
As reported by p2pnet, the UK Ministry of Justice is re-evaluating the 1848 precedent, which is likely to have far reaching implications for the future of internet publishing. The Ministry is assessing the relevancy of the so called 160 year old multiple publication rule in today’s world.
The rule was enunciated in the case of Brunswick v Hamer (1849) 14 QB 185. The internet defamation consultation questions can be found here. This old libel case still governs the law of libel on the internet under English, Irish law and in most Commonwealth jurisdictions. The ruling’s effect is that each individual libellous publication gives rise to a separate cause of action, with a separate limitation period attached to it.
Civil libertarians and media publishers argue that within the internet context publication should only be libellous when first posted on the internet.
The Duke of Brunswick case involved an exiled German ruler Karl 11, Duke of Brunswick and Luneberg; the Duke of Brunswick 8 Luneberg (1804-1873). After finding out in 1848, 17 years later that he had been defamed in an old London newspaper, the Duke sent his servant to procure a copy of the article published in 1830. As the then six year limitation period for bringing an action for defamation had expired, the Duke relied upon the sending of his servant to procure copies of the offending article to press defamation proceedings for injury to his reputation.
The Duke also obtained a copy of the paper from the London publisher of the newspaper for this purpose, and sued based on the two copies of the original article retrieved. Although there was a statute of limitations in place barring the bringing of actions after six years, the Queens Bench held that the procuring of the two articles by the Duke each amounted to a new publication of a libel, giving rise to a fresh cause of action in respect of each.
The Courts agreed that Harmer’s receipt of a back issue of the offending publication in 1848 constituted a separate act of publication, with the statutory time limit for bringing action commencing at the point in time it was received rather than the date of it’s printing and distribution 17 years previously.
Civil liberties advocates argue that the rule has had a chilling effect on freedom of speech on the internet and is an abuse of process. In subsequent case law in Ireland and England the case has been interpreted to mean that a libel occurs on each separate occasion a user downloads libellous material in an online environment.
Based on the reasoning in this ruling, newspapers confront the prospect of endless libel suits which can be lodged every time an article is downloaded, even where the act of downloading occurs years after the original date it is posted. Theoretically the aggrieved person can sue in any jurisdiction in the world where the downloading of the offending publication occurs, providing of course that they can demonstrate some relevant connection with the jurisdiction where the downloading occurs.
In Loutchansky v Times Newspapers [2002] QB 783 the Court of Appeal elected not to follow the US rule, favouring the Duke of Brunswick case. The Court held that the Duke of Brunswick case applied to internet archives such that every time a newspapers’ online archive was accessed, an act of publication occurred with it’s own limitation period.
The case was appealed to the European Court of Human Rights, the Defendant newspaper The Times arguing that the Duke principle exposed publishers to potential litigation without any time constraints. The defendant submitted the principle violated Article 10 of the European Convention on Human Rights. See Times Newspapers Ltd (Nos 1 and 2) v the United Kingdom (Applications 3002/03 and 23676/03, 10 March 2009) the ECHR (fourth section).
It was unanimously held that there had been no violation of the Article. The case in question revolved around two articles regarding the financial dealings of the Plaintiff. Each article was posted on the newspapers’ website on the day it also appeared in print form.
The defendant Loutchansky instigated libel proceedings over the articles, with the newspaper conceding they were defamatory and relying on qualified privilege as a defence. The Times submitted that the content of the articles were of sufficient public importance that they were duty bound to publish them in the public interest.
Pending the resolution of the case, the articles remained on the website, leading Loutchansky to bring new libel proceedings pertaining to the internet publication. The defendant prevailed in the case.
The criticism of the old Duke of Brunswick ruling stems from the fact that it has made London a popular location for the launching of internet libel cases brought by celebrities and overseas businessmen, including those accused of financing terrorism. The reason for this is that British laws are more favourable to prosecuting defamation actions than the US. This encourages forum shopping.
Based on the reason in the 160 year old case, all that needs to be demonstrated is that there was a publication, however small it’s circulation and that there is some connection with the jurisdiction of England. That connection may be a connection to the jurisdiction or the existence of a reputation the Plaintiff has there which was damaged.
The case law in England has predominantly involved foreign businessmen in Russian and Saudi Arabian figures accusing of financing terrorism bringing law suits in London to stifle freedom of speech.
In Berezovsky v Michaels [2000] UKHL 25, Russian tycoon Boris Berezovsky launched action against the UK Forbes magazine, a case which dragged on for six years before being resolved in the defendant’s favour. The defendant magazine submitted that the case was more appropriately heard in either the US or Russia, however the House of Lords, applying the Duke of Brunswick principle, gave leave to Berezovsky to sue in England based on his connection to and reputation in England.
A minority of judges remarked that the Russian was engaging in libel tourism, picking the UK courts as he knew that he was unlikely to prevail in the US or Russia. The case was followed in, Dow Jones v Gutnick (2002) 210 CLR 575 by the High Court of Australia which giving rise to controversy and outrage by American media publishers. As stated above, American case law states that a defamatory publication gives rise to a single causee of action for libel which runs from the time of publication as does the statute of limitations. See Gregoire v GP Putnam’s Sons 81 NE 2d 45 (1948). The United States case law means that there can only be one single act of publication, the date at which the act of publication occurs, one cause of action in the place of publication where the article appears.
The Ministry of Justice’s public consultation paper raises questions over the appropriateness of the principle in the Duke of Brunswick case in today’s internet publishing world.