William 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.

In 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: Read the rest of this entry »

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Two Australian stories recently caught my eye; and, although at first blush the only link is Australia, there is in fact a deeper connection. The first is from the BBC news Website:

Writer jailed for Thai ‘insult’

Australian writer Harry Nicolaides has been sentenced to three years in a Thai jail for insulting the monarchy. Nicolaides wrote a novel four years ago, which contained a brief passage referring to an unnamed crown prince. It sold just seven copies.

He admitted the charge of insulting the royal family, but said he was unaware he was committing an offence. Thailand’s monarchy is sheltered from public debate by some of the world’s most stringent “lèse-majesté” laws.

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As the Dáil resumed yesterday, last week’s post on libel tourism has prompted me to pick up the story of the tortuous progress of the Defamation Bill, 2006 through the Houses of the Oireachtas [the Houses of Parliament]. When we left it on this blog, it had just scraped the through the Seanad [the Senate, the Upper House of Parliament] on the second time of asking; thereafter, it had a brief consideration in the Dáil [functionally equivalent to a House of Commons, the Lower House of Parliament] before the Summer recess halted its progress once more. This post, and the next few, will consider these stages of its progress, just in time to wait (and – probably – wait and wait) for further developments in the new Dáil session.

The Defamation Bill in the Seanad
The Defamation Bill, 2006 was introduced into the Seanad on 7 July 2006, and thereby began a long and winding road to enactment, a destination it has not yet reached. Read the rest of this entry »

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