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 | | 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.

2. If the multiple publication rule is retained, there should be a prime facie obligation to place a notice on an archive once the person responsible has been notified that the material is subject to defamation proceedings.

3. A single publication rule should be applicable to all defamation proceedings and not just those relating to online publications.

4. In the first instance, the primary remedy for a defamatory electronic publication should be an appropriate form of correction (ranging from an appended note to the effect that the article was subject to successful defamation proceedings to a full rewrite). Hence, existing voluntary regimes relating to the correction of inaccurate and misleading material should be given statutory protection. More than that, strong encouragement should be given to prompt apologies; of course, in principle, this should apply both online and offline, though more use is likely to made of it online.

However, since a book publisher may have defamatory books pulped, it follows that defamatory material in other forms should be prime facie amenable to similar orders. Hence, in the context of an electronic copy of defamatory material under the defendant’s control, if a correction would be insufficient to give appropriate protection to the plaintiff’s interests, then that electronic copy should be prima facie amenable to an order to remove or amend it. However, the fact that the material is in electronic form and can therefore be relatively easily deleted could lead too readily to an order to that effect; and just because it is easy to do doesn’t mean that it is the right thing to do. An order to this effect should not be routine or a matter of course; instead, every case must be carefully judged on its merits; and such an order should only be made where correction is judged insufficient.

Since someone who re-publishes a libel becomes independently responsible for the libel, there is no good reason why this should not also be the case for an online re-publisher. In other words, a single publication rule should only apply to accessing the original publication, rather than to a subsequent re-publication.

5. I would leave the development of the details of a single publication rule to the courts. The US approach relating to the single publication rule would be persuasive, but not necessarily binding. In particular, whether modification of online content should be regarded as a new publication is a matter of degree. I regularly tweak my blogposts to update them, correct errors spelling and grammar, or to amend or delete dead links. But they are still substantially the same posts, and their modifications do not change that.

6. I would not tamper with another aspect of the law of defamation (such as the defence of qualified privilege) simply to draw the sting of an unworkable multiple publication rule. That would be to have two illogical rules rather than one rational one. On the other hand, I would strengthen the position of ISPs under the innocent dissemination defence.

7. If the multiple publication rule is retained, the limitation period should be the same for both off-line and on-line publications (which is one year from the date of publication, with discretion to extend).

8. If a single publication rule is introduced, the limitation period should be the same for both off-line and on-line publications (one year from the date of publication, with discretion to extend). A limitation period based upon date of knowledge would in effect reintroduce the multiple publication rule by the back door.

Of course, I retain the right to change my mind once I have actually thought about these issues! :-)