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  QB 783,  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,  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
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:
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…)