A change in the law for online archives?

A decision of Mr Justice Gray in Loutchansky v Times Newspapers (2000), later affirmed in the Court of Appeal, exposed an anomaly in the law of defamation about how long a person has in which to sue over a defamatory publication.

In defamation, the limitation period (the period of time within which proceedings must be commenced) under English law is one year from when the defamatory material is published. However, a new cause of action arises each time the libel is published, with a new one-year limitation period beginning afresh. So, if a second edition of a book is published, a new one-year period begins.

The decision in Loutchansky made it clear that, applying this principle to the internet, a new cause of action arises and a new limitation period begins every time a website containing a defamatory statement receives a “hit”.

As a result, newspapers are left open to the risk of having to defend libel actions over online editions many years after the article was first published in print.

In January 2002, the Lord Chancellor asked the Law Commission to conduct a preliminary investigation to determine whether the law on defamation and contempt of court causes particular difficulties in relation to the internet. Following consultations with internet service providers (ISPs), online publishers and lawyers, the commission has published an interim report which identifies a number of areas of concern, including the difficulties posed by archived information stored by newspapers and other publishers on their websites.

The commission believes that the law of limitation works unfairly on newspapers and others who maintain archives on the internet. It therefore recommended a review of the law in this area. One solution might be to follow the US approach and adopt a “single publication” rule by which an article is deemed to be published when first posted on an archive.

While this would benefit publishers on the internet, some argue that it exposes another anomaly, which was also highlighted in the Loutchansky decision – an article could remain accessible on the internet and effectively be immune form suit indefinitely, even though its publisher accepts that it cannot be justified.

Hopefully, Parliament will follow the commission’s advice and legislate to remove what many see as an unnecessary and unfair restriction on internet publishers.

Whether it would do so by adopting the US “single publication rule” or devising its own compromise to balance the rights of publishers and would-be litigants remains to be seen.

The commission also found that newspapers and other publishers are at risk of being held in contempt of court for storing on their sites material prejudicial to a trial, even though they were unaware of the trial. Particular concern has been voiced that newspaper archives could contain records of a defendant’s previous convictions or acquittals, which jurors could research during a trial.

However, unlike the limitation issue, the commission does not see this as a priority for reform, concluding that there are already sufficient safeguards in the existing law to ensure that internet publishers are protected against inappropriate, arbitrary or trivial prosecution.

Ashley Hurst is a trainee solicitor in the media group at Lovells

by Ashley Hurst

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