Times Newspapers Limited (nos 1 and 2) v the UK The long-standing principle of ‘publish and be damned’ is jealously guarded by the media. But when it comes to publications on the internet, a recent decision of the European Court of Human Rights (ECHR) shows that those who publish there may find themselves being damned for ever and a day. The ECHR has ruled that a one-year limitation period for internet libels is not a breach of article 10 of the European Convention on Human Rights, as Times Newspapers Limited (TNL) had hoped to show.

Six-year limitationThe Limitation Act 1980 reduced the previous six-year limitation period in defamation actions to one year. Media lawyers practising during that period may well recall a busy flurry on receipt of new instructions, ensuring that the date – all too-fast approaching when compared to the more leisurely six years – was quickly diarised.

By contrast, media organisations might have rejoiced at this change, streamlining litigation and ostensibly making it easier for them to manage their reporters and records, not to mention reducing the number of prospective sleepless nights over potentially actionable articles. But the rise of the internet and online libel actions soon proved a fly in this otherwise soothing ointment.

UK law provides that each publication – and that is each communication of the defamatory material to a third party – constitutes a separate actionable tort, whether or not the trigger was the purchase of a newspaper or the accessing of an article online. The result is that, provided an article is available online to be accessed, the limitation period for that online publication is effectively extended indefinitely.

Times Newspapers Limited decided to take this issue to the ECHR. In 1999, the Times published two reports in the printed version of the newspaper and online concerning allegations of money laundering against a Russian national. He sued for libel and the defendant, which did not dispute that the allegations were defamatory or seek to argue that they were true, relied on the defence of qualified privilege. However, while the libel action was underway, the articles of complaint remained on their website and, in 2000, the claimant also brought libel proceedings in respect of these.

Single publication ruleIn 2001, the defendant applied to re-amend its defence in the internet posting libel action ‘to contend that, as a matter of law, the only actionable publication of a newspaper article on the internet is that which occurs when the article is first posted on the internet’.

In other words, the one-year limitation period should start from the date that the article was first available. This would have brought UK libel law into line with that in the US, where this rule is known as the ‘single publication rule’ established when, in 1948, the New York Court of Appeals had considered the 19th century UK case of Duke of Brunswick v Harmer and had found it wanting, formulated as it was ‘in an era which long antedated the modern process of mass publication’. In 1849, the Duke of Brunswick had sent his butler to obtain a back issue of the Weekly Dispatch from 1830 on which he was then able to sue over its defamatory content notwithstanding that the limitation period had long since expired. The UK domestic court, by contrast, refused TNL’s application to amend its defence, continuing to rely on the common law rule in Brunswick v Harmer as extended to internet publications in Godfrey v Demon Internet Limited. In this 2001 case, an internet service provider had received and stored an article defamatory of the claimant, Dr Godfrey, on its news server. The judge held that ‘every time one of the defendants’ customers accesses [the newsgroup containing the posting] and sees that posting defamatory of the plaintiff, there is a publication to that customer.’ So, each separate accessing of the online publication is a separate, actionable tort – as Brunswick had established regarding traditional ­publications – giving rise to the ­internet publication rule.

Domestic denialRelying on these principles, the Court of Appeal dismissed TNL’s application to amend its defence. It accepted that ‘the maintenance of archives, whether in hard copy or on the internet, has a social utility’, but described this as a ‘comparatively insignificant aspect of freedom of expression’ as the news was ‘stale news’. It held that ‘the law of defamation need [not] inhibit the responsible maintenance of archives. Where it is known that archive material is or may be defamatory, the attachment of an appropriate notice warning against treating it as the truth will normally remove any sting from the material’. In other words, a note on the online version of the article confirming ongoing litigation should be published.

By pursuing the matter to the ECHR, TNL no doubt hoped that the Strasbourg jurisprudence might – as the US had done – be prepared to consign the Brunswick and Godfrey rules to the annals of history. But it was disappointed.

European argumentTNL argued that, as it stood, the rules had a chilling effect on its free speech. By contrast, the single publication rule it sought to impose ‘would not constitute an excessive restriction on the right of effective access to the court’ and was necessary to enable it to continue its important role in maintaining archives which were important to ‘the integrity and availability of historical records’ in a democratic society. Further, as it was entitled to rely on the defence of qualified privilege, arguing that it had responsibly published matters of public interest, it was under no obligation to publish a note, qualification or warning such as the Court of Appeal had proposed. Any such clarification would only be appropriate later if and when it were found to have defamed the claimant, but not before.

In reply – as summarised in the ECHR judgment – ‘the government agreed that there was a social utility in maintaining archives but did not consider that this was of central or weighty importance’. There was ‘no evidence that the applicant had been prevented or deterred from maintaining its online archive’ and the steps required to remove the sting from the online material – publishing an interim warning – were ‘not onerous’.

DecisionThe ECHR referred to freedom of expression as one of the essential foundations of a democratic society, asserting that careful scrutiny must be required where imposing sanctions on the press that may discourage the debating of matters of legitimate concern. ‘Particularly strong reasons must be provided for any measure limiting access to information which the public has the right to receive,’ it said. However, it went on, ‘when exercising its right to freedom of expression, the press must act in a manner consistent with its duties and responsibilities, as is required by article 10.2’.

The court concluded: ‘The applicants maintain that they are exposed to litigation, without limit in time, on account of the adoption of the internet publication rule instead of the single publication rule’. The court accepted that the primary role for the press is ‘to act as a "public watchdog"’ and that it has a ‘valuable secondary role in maintaining and making available to the public archives containing news which has previously been reported’. However, as to limitation periods, they were ‘intended to ensure that those who are defamed move quickly to protect their reputations in order that newspapers sued for libel are able to defend claims unhindered by the passage of time and the loss of notes and fading memories’. In determining the relevant applicable limitation period, the state should balance the right of the press against the right of the individual, and that balance in the UK had not been improperly assessed, so that the UK’s failure to adopt a single publication rule was not a violation of TNL’s article 10 rights

It also noted that, in its view, the suggestion of the Court of Appeal that a qualification should be attached to an online version of an article under complaint was not excessive, serving as a clear indicator that it would expect the publication of such notes in future cases.

Was there any soothing balm provided by the ECHR to the defendant? The judgment set out that the purpose of a reasonable limitation period is to ensure that matters are progressed quickly and proportionately and that ‘libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under article 10’.

Better get on and diarise that limitation period after all.

Amber Melville-Brown, Withers, London