Multiple publication; multiple reform?

Multiple PublicationAt common law, the rule in Duke of Brunswick v Harmer (1849) 14 QB 185 established that each individual publication of a libel gives rise to a separate cause of action, subject to its own limitation period; hence, if the same publication is read many years later, that is a new publication giving rise to a new cause of action. It has been abolished in Ireland by section 11 of the Defamation Act, 2009 (also here), which provides:

(1) Subject to subsection (2), a person has one cause of action only in respect of a multiple publication.

(2) A court may grant leave to a person to bring more than one defamation action in respect of a multiple publication where it considers that the interests of justice so require.

(3) In this section “multiple publication” means publication by a person of the same defamatory statement to 2 or more persons (other than the person in respect of whom the statement is made) whether contemporaneously or not.

Moreover section 3 of the Rules of the Superior Courts (Defamation) 2009 (SI No 511 of 2009) provides for procedures relating to applications under section 11, though I am not aware of any caselaw yet on that section. Recent UK libel reform processes have recommended a similar provision (Ministry of Justice: 2009 | 2011). Now, I learn from Judith Townend’s excellent Meeja Law blog that the First Report of the UK’s Parliamentary Joint Committee on the Draft Defamation Bill:

accepts the Draft Bill’s proposal for a Single Publication Rule, which would limit defamation claims to one year following initial digital publication, as long as the contents are substantially the same as the original (the court still has discretion to extend the one-year time-period “whenever it is just to do so”). Additionally, the Committee called for a widening of the clause’s remit, to protect not just the original publisher but anyone who republishes the same material:

The single publication rule should protect anyone who republishes the same material in a similar manner after it has been in the public domain for more than one year. It should be clarified that the simple act of making a paper-based publication available on the internet, or vice versa, does not in itself amount to republishing in a “materially different” manner.

This is a fascinating suggestion, going much further than the existing UK proposals position, but it risks making an already over-elaborate clause even more complex. I much prefer the crisp section 11, which on its face already reaches the issue considered by the UK’s Joint Committee. Their discussions do demonstrate that the issue is not straightforward, and may yet need to be revisited; but, for the time being, I think tha section 11’s lack of embellishment gets the balance about right.

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