One problem with many modern electronic archives is that they rarely work. Although they sound great in theory, the practice sometimes makes you yearn for the good old days of yellowing newsprint glued to a piece of paper, stuffed in a filing cabinet.
At least they usually worked efficiently – until, of course, the lady who ran the system went on holiday. Then the entire operation ground to a halt, since only she in the office knew how it worked.
There are also potentially serious legal problems:
1.The cutting may have been defamatory when it was first used. If we re-use it, we republish the libel and can be sued again. The Evening Star, in Ipswich, came a cropper in 1981 when they repeated statements about a doctor in their “Looking Back” column first used 25 years ago. While they went unchallenged at the time, the doctor sued for them on the second occasion and won damages.
2. The cutting may be a report of a court case where someone has been found guilty. But re-using it could be libelous if the defendant was cleared on appeal.
3. The cutting may refer to someone’s spent convictions under the Rehabilitation of Offenders Act 1974. To reprint these after someone has served their rehabilitation period may leave you open to a libel action. Usual defences such as fair comment, justification and privilege may fail.
4. The cutting may refer to circumstances that may have changed. For instance, a reprinted cutting that says that a couple are married may be libelous if they have subsequently divorced and remarried, since it would imply that they are currently cohabiting and that their children are illegitimate.
Photos can also be a particular danger here. One local paper in got into trouble for re-using an archived photo of a criminal standing outside his house. The house, however, had changed hands and the new owners complained that the photo and its caption implied that it was they who were criminals as their home was recognisable.
5. The cutting may contain information or allegations that were originally covered by qualified privilege. But appeal court judges in Loutchansky v The Times ruled that the protection that web archive articles receive from qualified privilege can weaken with the passage of time. The judges advised web editors to post notice, warning readers against treating such articles as the truth in order to remove the sting of a possible libel action.
6. The cutting may refer to someone’s previous convictions or give details about their lifestyle – and this information could prejudice a new trial if proceedings were active under the Contempt of Court Act 1981.
8. The original story may have contained inaccuracies that should not be repeated.
9. Captions matter. One magazine printed an archived photo of a man standing by some fruit machines in an amusement arcade to go with an article about gambling addiction. The man was no addict and sued.
So the message with cuttings is – “handle with care”. Archive entries should be updated to reflect any new circumstances that could lay the publication open to possible legal problems.
by Cleland Thom