The website archive: a hostage to fortune? - 1 June 2001

As most media organisations are now well aware, the electronic version of their publications on a website can land them with a writ for libel in just the same way as an article in the holding, folding version.

The nearly-new ‘internet defence’ afforded by s.1 Defamation Act 1996 is unlikely to be available because the site is almost certainly operated by a "commercial publisher", which nullifies that defence.

Claimants in defamation proceedings, or threatened proceedings, now routinely cite publication on the newspaper’s website. But cyberlibel creates some of its own particular problems, most of which have not yet been resolved by our courts.

One issue is the extent of publication and therefore its effect on the amount of damages. How many people have read that article buried away in the archive for the past nine months? Software is of course available which can provide detailed information as to how often a particular page on a website (the offending article in the archive) has been visited, on what dates, and even by whom (or at least by whose PC). Such data is often useful to marketeers and website designers. But having to disclose it in legal proceedings may not be so appetising, unless, of course, it demonstrates that the only people accessing the archived article were the claimant and his lawyers.

Another question is its effect on the one- year limitation period for bringing libel proceedings. In the US, this point was decided last year in Firth v State of New York. The claimant tried to sue after the 12-month deadline on the basis that every day the article remained accessible in the website archive there was a new publication which set the clock running again. Unsurprisingly, this argument found little favour. Provided that there was no change in the form of the article, the court said, its continued availability on the internet did not constitute publication "anew each day".

A related, though different, point was considered in our High Court in last month’s libel action brought by Russian entrepreneur Gregori Loutchansky against The Times. The newspaper relied solely on the ‘Reynolds defence’ of qualified privilege developed in 1999 by its Sunday stablemate. At no time did it claim that the story was true. In Reynolds, the House of Lords established that in certain (limited) circumstances a newspaper which has exercised the requisite standard of care and which is under a duty to bring a matter to public attention will have a defence even if it inadvertently got the story wrong.

The question in Loutchansky was whether, once the newspaper realised the story was not true, it could continue to rely on the qualified privilege defence in respect of the electronic version of the article which remained on the website. The court ruled that it could not. The practical implication appears to be that once a newspaper knows a story is wrong (there is no defence of justification), the electronic version should be removed or at least marked with a notice recording that it is the subject of a dispute. This ruling may be the subject of an appeal.

David Engel is a partner in the Media & Internet Litigation Group at Theodore Goddard

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