Category: Multiple publication

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.

The UK’s libel reform proposals are a good start

UK Ministry of Justice logo, via their siteThe UK’s Ministry of Justice has announced its long-awaited consultation on the reform of the UK’s libel laws. Much of the territory covered by draft Defamation Bill was covered in Ireland by the Defamation Act, 2009 (also here), though there are some important differences as well. In this post, I want briefly to compare and contrast the UK Bill [the Bill] with the Irish Act [the Act]. To spoil the conclusion (for those of you who won’t read further than this opening paragraph) the Bill is largely in line the Act, and, in this respect, I am reminded of the Irish adage “tosach maith, leath na h-oibre“: a good start is half the work. In the end, that is what the Bill is: a good start.

Similarities
Clause 2 of the Bill provides for a defence of responsible publication on matter of public interest. In many ways, this analagous to the defence of fair and reasonable publication on a matter of public interest contained in section 26 of the Act. But clause 2 is a far less mealy mouthed version of the defence than the unworkably narrow section 26 is: there are fewer hurdles to be jumped by a defendant seeking to rely upon it.

Clause 3 of the Bill provides for a defence of truth (to replace the existing defence of justification), and this is analgous to the defence of truth contained in section 16 of the Act. The Bill requires that the “imputation conveyed by the statement complained of is substantially true” whereas the Act requires that it be true “in all material respects”. Only time – and expensive cases – will tell whether this is a distinction with any real difference.

Clause 4 of the Bill provides for a defence of honest opinion (to replace the existing defence of fair comment), and this is analgous to defence of honest opinion contained in section 20 of the Act. However, the Bill is more objective than the Act – the Act requires that the opinion is honestly held by the defendant, whereas the Bill simply requires that an honest person could have held the opinion. Moreover, as with the public interest defence, the Act places more hurdles in the way of the defence than the Bill does.

Clause 5 of the Bill provides for some technical amendments to the statutory occasions of qualified privilege, which differ in the details from the similar amendments worked by section 18 and Schedule 1 of the Act.

Clause 6 of the Bill replaces the common law multiple publication rule with a single publication rule, analgous to the reform worked by section 11 of the Act. This was already the subject of a consultation in the UK, and is a very welcome proposed reform, but – unlike the situation in respect of the public interest and honest opinion defences – the UK clause is far more elaborate than the Irish section. In this respect, I much prefer the starkness of the defintion in the Act to the over-elaborate technicalities in the Bill.
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SI No 511 of 2009: Rules of the Superior Courts (Defamation) 2009

Courts Service logo, via the Courts Service site.One of the reasons for delaying the coming into effect of the Defamation Act, 2009 from 23 July 2009 when it was signed by the President until 1 January 2010 was the need to amend the Rules of the Superior Court to provide for the changes to practice and procedure which it requires. Those changes are effected by SI No 511 of 2009: Rules of the Superior Courts (Defamation) 2009 (pdf). It inserts a new Order 1B in, and amend Order 22, Order 36 and Appendix B, Part II of the Rules of the Superior Court) to facilitate the operation of the Defamation Act, 2009. In particular, it makes provision for

  • verifying affidavits under section 8,
  • the procedures relating to various applications under sections 11 (multiple publication), 14 (meaning), 33 (prohibition order), and 34 (summary application), and under section 11(2)(c) of the Statute of Limitations 1957 (as amended by section 38),
  • applications under section 23 relating to offers of amends,
  • notification of evidence of apology under section 24, and
  • particulars of evidence in mitigation (amending Order 22 RSC).

Libel tourism, online defamation and multiple publication

In the UK, the Ministry for Justice has just begun a consultation process seeking views on the “multiple publication rule” at common law under which each publication of defamatory material can form the basis of a new defamation claim, and in particular on the effects of this rule in relation to online archives. If this rule is reformed, then a major plank of the libel tourism phenomenon, by which London has become the libel capital of the Western world and home to libel actions that have little to do with its jurisdiction, will quite properly have been removed (see BBC | ComputerWorld | Greenslade | Guardian | Index on Censorship Free Speech blog | Information Overlord | OUT.law | Slaw | TechWatch | Times Online).

The multiple publication rule was established in Duke of Brunswick v Harmer (1849) 14 QB 185 (already discussed on this blog), reaffirmed in Loutchansky v Times Newspapers [2002] QB 783, [2001] EWCA Civ 1805 (05 December 2001), and upheld by the European Court of Human Rights (ECHR) in Times Newspapers Ltd (Nos 1 and 2) v the United Kingdom Applications 3002/03 and 23676/03, [2009] ECHR 451 (10 March 2009). However, it seems to have been excised from Irish law by section 11 of the new Defamation Act, 2009, which provides

Multiple publication
11.—(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.

This is not an easy section to parse; but it seems to me that two subsequent clicks on the same internet archive article constitute “the same defamatory statement” to two persons, but not contemporaneously; and if this is right, then section 11 reverses the common law position. The UK consultation, in effect, then, is whether UK law should come into line with Irish law. The Ministry places this consultation in the context of a wider reform of defamation law currently underway, which includes the decriminalisation of seditious libel currently before Parliament, and a consultation earlier this year on controlling costs in defamation proceedings (update: more here). Moreover, it is plainly a response to the ECHR decision in the Times Newspapers, which, whilst upholding the multiple publication rule, nevertheless emphasised that

48. … while an aggrieved applicant must be afforded a real opportunity to vindicate his right to reputation, 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.

In other words, although the multiple publication rule still survives in the UK, it is not necessarily entirely compatible with free speech norms. From the webpage on the multiple publication consultation:

Defamation on the internet: Ministry of Justice seeks your views

A debate on aspects of defamation law, and how it works in the internet age, was launched today by the Ministry of Justice. Part of the law on defamation originates from the 1840s, long before the internet arrived and changed the way that opinions and comment are often communicated. Today’s consultation seeks views on specific issues that could interest anybody who posts or publishes on the internet, particularly those who maintain online archives. …

Jack Straw, Secretary of State for Justice, said:

… Freedom to hold and express opinions is a right that is vital to democracy, as is respect for the rights and freedoms of others. How these principles are balanced in the fast-changing internet age is a fascinating debate.

To encourage responses, there is a short list of 8 questions, to which my off-the-top-of-my-head answers are as follows:

1. The multiple publication rule in the UK should be abolished and replaced by a single publication rule, just as the new Irish Act has done. (more…)

Article 10 and the Duke of Brunswick

Duke of Brunswick, originally via wikipedia, but now hosted locallyWilliam VIII, Duke of Brunswick (pictured left; 1806-1884) was ruling duke of the Duchy of Brunswick from 1830 until his death. A famous eccentric, he bequeathed at least two interesting events to history. First, he lost a famous chess game to Paul Morphy (the Bobby Fischer of his era). Second, he won an infamous libel appeal which now governs internet publication at English and Irish law.

The rule in Duke of Brunswick v Harmer (1849) 14 QB 185 is that each individual publication of a libel gives rise to a separate cause of action, subject to its own limitation period; it has been followed at the highest levels (Berezovsky v Michaels [2000] UKHL 25 (11 May 2000); Dow Jones v Gutnick (2002) 210 CLR 575, [2002] HCA 56 (10 December 2002)) and in the online context (Godfrey v Demon Internet Ltd [2001] QB 201, [1999] EWHC QB 244 (26 March 1999); Dow Jones v Gutnick again). US law is different: a defamatory publication gives rise to a single cause of action for libel, which accrues at the time of the original publication, and that the statute of limitations runs from that date (see, eg, Gregoire v GP Putnam’s Sons 81 NE 2d 45 (1948)).

In Loutchansky v Times Newspapers [2002] QB 783, [2001] EWCA Civ 1805 (05 December 2001) the Court of Appeal declined to follow the US rule and instead reaffirmed Duke of Brunswick v Harmer. The Court declined to “accept that the rule in the Duke of Brunswick imposes a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression”, and held that it applies to internet archives. In effect, every time a newspaper’s online archive is accessed, there is a new publication and the limitation period starts to run from that date, and not from the date of the original publication. This proposition has significant consequences for freedom of expression (see Amanda Russell and Margaret Smillie [2005] JILT 3). In the European Court of Human Rights, the Times therefore argued that the rule in Duke of Brunswick v Hamer exposes publishers to potential litigation without time limit, and therefore infringes Article 10 of the European Convention on Human Rights.

The Times thumbnail, via Times OnlineIn Times Newspapers Ltd (Nos 1 and 2) v the United Kingdom (Applications 3002/03 and 23676/03, 10 March 2009) the ECHR (fourth section) unanimously held that there had been no violation of Article 10 on the facts of Loutchansky: (more…)