Facts
The Respondent was an international businessman of Russian and
Israeli dual nationality. Before December 1994, he was a regular
visitor to England and had a large number of personal business
contacts here. In that month, the Home Secretary personally
directed his exclusion from the UK on the ground that his presence
here would not be conducive to the public good. The Respondent had
been challenging that decision ever since.
The Times ran articles on 8 September 1999 and 14 October 1999
containing material about the Respondent that the Appellants
admitted were defamatory, alleging as they did that the Respondent
was involved in Russian crime organisations and money laundering
activities. In accordance with the practice of the Times’ web site,
these articles had been stored and continued to be available on the
web site even after the Respondent’s letter before action of 17
November 1999 and subsequent complaints about the continuing
publication of the articles. A qualification was added to the web
site on 23 December 2000 in relation to the first article.
In relation to these first claims of defamation the Appellants
did not attempt to justify the articles. This was because
there was simply no admissible evidence to plead even the lesser
ground of justification (justification being a defence to alleged
defamation) – that of reasonable grounds for suspicion.
This second action was brought a year after the first. It
related to the continuing publication of the articles on the
internet and was prompted by the Respondent’s discovery that they
were being published without any qualification. The defence adopted
was, as in the first action, qualified privilege. In addition
the Appellants relied on the fact that it maintained on its web
site a publicly available archive of past issues as a service to
the general public, both in this country and abroad.
One issue related to the defence of qualified privilege in the
second action. The judge at first instance had struck this defence
out because the Appellants had no reasonable grounds to contend
after the date of the Appellants’ defence in the first action that
they remained under a duty to publish these articles over the
internet, nor could they sustain a separate argument for a special
“archive” privilege. The judge at first instance had said:
“To succeed in a defence of qualified
privilege the defendants had to show that they had been under a
duty to publish the articles on the internet. Only in exceptional
circumstances can such a duty arise if the publisher has no honest
belief in the truth of the matter published. No such special
circumstances attended the publication on the internet. Mr Brett
[in-house lawyer for The Times] had conceded that the defendants
had no honest belief in the truth of what they had published. This
was fatal to a defence of qualified privilege.”
Another issue that arose related to the Limitation Act 1980
section 4A, which makes the limitation period for defamation one
year. Section 32A provided that a court could disallow section 4A,
having regard to the degree to which the operation of section 4A
prejudiced the claimant and the degree to which any decision of the
court would prejudice the defendant. The question centred on how
these provisions should apply to publication on the internet. The
Appellants wanted to amend their pleading to enable them to advance
the case that the limitation period began to run as soon as the
allegedly defamatory article was first posted on the web site and
that subsequent occasions upon which the web site was accessed did
not give rise to separate causes of action, each with its own
individual cause of action.
The judge at first instance refused leave to amend because he
thought that the Appellants’ argument was unsustainable.
Judgment
The Appellants’ counsel conceded that success for the Appellants
would involve the creation of new law. It is a well established
principle of English defamation law that each individual
publication of a libel gives rise to a separate cause of action,
subject to its own limitation period. In Godfrey v Demon
Internet Limited [2001] QB 201, the respondent ISP had
received and stored on its news server an article defamatory of the
respondent. It was held in Godfrey that whenever the
defendant’s news server transmitted a defamatory posting then there
was a publication of that posting. That publication was to
any subscriber who accessed the newsgroup containing that
posting. Thus, every time one of the defendant’s customers
accessed soc.culture.thai and saw the posting defaming Dr Godfrey
there was a publication to that customer. The Godfrey
judgment is consistent with previous law, as illustrated by
Duke of Brunswick v Harmer [1849] 14 QB 185 and indeed it
is an entrenched feature of English law.
The Appellants suggested that the law should be changed. The
argument was that keeping back numbers of a newspaper on a web site
meant that publication would happen every time a user accessed the
back issue. This would give rise in effect to an indefinite
limitation period and run counter to the one year limitation period
introduced by section 4A for libel and slander. That there is
social utility in having internet access to such materials (as
opposed to buying back copies or visiting libraries), and the law
should evolve to reflect these conditions.
The Appellants contended that section 4A should be interpreted
in a different way and the one year limitation period, which under
section 4A started from the date on which the cause of action
accrued, should be taken to mean the date of initial publication.
This would introduce into English law a principle of US law known
as the single publication rule. The Appellants contended that such
a rule should be applied where the issue was one of limitation in
relation to an action commenced in this jurisdiction.
The Appellants observed that the availability of archives on a
web site made the position much more acute than is the position
with a hard copy library, since the materials were so much more
readily accessible.
The Appellants also invoked Article 10 of the Convention on
Human Rights. They argued that if defamation actions were
permitted more than a year after the initial publication, this
would operate as a restriction on a writer’s freedom of expression.
By the Human Rights Act 1998, to be justified, any curtailment of
freedom had to be convincingly established by a compelling
countervailing consideration, and the means employed had to be
necessary and proportionate to the ends sought to be achieved.
In the Appellants’ view, maintaining an archive accessible on
the internet of back issues was a very valuable service to the
public. If it rendered a newspaper liable to claims in defamation
for years and even decades after the initial hard copy and internet
publication, this rule would affect the readiness of newspapers to
provide such a service at all and would lead to the limitation of
freedom of expression.
Against this, the Respondent argued that Article 10 itself
recognised that the right of freedom of expression could properly
be restricted for the protection of the reputation or rights of
others. In this case, the Appellants could have protected
themselves by retaining the articles on the web site but with a
suitable qualification.
The maintenance of archives is a useful social utility, but old
news is stale news, and its publication cannot rank in importance
with the dissemination of contemporary material. If a defendant has
archive materials that are or may be defamatory, an appropriate
notice warning against treating it as the truth will normally
remove the sting from the material. In any case, the scale of such
internet publication of archive material and any resulting damage
is likely to be modest compared with the original publication, and
in the present case the action based on internet publication was
subsidiary to the main action.
It is not necessary for a newspaper raising a qualified
privilege defence along the lines of Reynolds v Times
Newspapers Ltd & Ors [1999] 3 WLR 1010 to establish
an honest belief in the truth of the matter published. Simply
because Mr Brett (the appellant’s in-house solicitor) made no
positive assertion of honest belief did not mean that it could be
deduced that he had no such belief. The judge’s primary reason for
striking out the defence was therefore not well founded.
However, a subsidiary reason for the judge’s decision to strike
out was that the Appellants had repeatedly republished on the
internet defamatory material that was not only the subject of a
defamation action but, in which they were not seeking to justify
the truth of the allegation. The Appellants had not published
any qualification to draw the reader’s attention to the fact that
the truth of the articles was hotly contested. The judge was right
to consider that the circumstances of the republication of back
issues of the Times on the internet were materially different from
those at the time of the original publication of the hard copy
newspaper.
The failure to attach any qualifications to the articles
published over the period of a year on the Times’ web site could
not be described as responsible journalism. It could not be argued
that the Times had a Reynolds duty to publish those
articles in that way without qualification.
The judge was therefore right to strike out the qualified
privilege defence in the second action, but not for the primary
reason he gave.
Commentary
This case raised a number of issues, but it has been reported
only to the extent that it impacts the law relating to the
internet.
One of the early concerns of the internet was the possibility of
defamation – the cloak of anonymity combined with the potentially
worldwide dissemination of harmful statements seemed an all too
obvious peril. Time has done nothing to diminish those fears and
there have been some high profile cases highlighting the dangers of
the internet in this context.
Such was the apprehended fear that the Defamation Act 1996
sought to deal with some of the more obvious dangers for ISP’s and
others engaged with online activities. Similarly, the Electronic
Commerce Directive has added its twopennyworth on the subject of
ISP liability.
This case illustrates another danger for those who host web
sites. It is common for newspapers and other publications to store
archives of their magazines. As anyone who has tried to obtain a
past copy of a hard copy magazine will testify, this is a
tremendous step forward. But what if the original text was
defamatory? Where does the “duty” to publish end and the duty not
to wrong someone begin? In particular what is the effect of the
traditional rule of English law that a publication takes place
every time the statement is issued to a third party, including the
author, editor, printer – even the vendor of a newspaper on the
high street?
It is true that English law drew a distinction between someone
who published and someone who just facilitated the publication, as
it was expressed. This distinction has given rise to some
interesting questions. But the essential doctrine remained: any
“publisher” was caught by the rule.
The Defamation Act 1996 came to the rescue of many involved in
disseminating materials on the internet. Section 1 of this Act
provides a defence for anyone who can show that they were not an
author, editor or publisher, as defined in that section. Subsection
(3) gives some indicative examples of who falls outside the
definition of publisher, and many involved in disseminating
materials over the internet may be able to bring themselves within
one of the definitions or argue by analogy that they should not be
considered a publisher within section 1.
The difficulty is in section 17(1), which provides some
definitions, including as follows:
““publication” and “publish”, in relation
to a statement, have the meaning they have for the purpose of the
law of defamation generally, but “publisher” is specially defined
for the purposes of section 1”
So the common law rule about publication remains, with its
distinction between publishers and facilitators. The Appellants
sought to overturn this rule in this appeal. However, the
traditional rule remains after the Court of Appeal’s decision. The
way out for those keeping such archives is the indication given in
the judgment that proper qualification of any defamatory article
may, in the proper case, be enough to avoid liability.
The important point to take away from this judgment is the
vigilance required on the part of newspapers and others who
maintain archives. Section 1 of the Defamation Act 1996 to some
extent encouraged those who could exclude themselves from the
definition of “publisher” to take a “hands-off” approach to vetting
material for possible defamation, as the more involved in content
you were, the more you could be said to be a “publisher”. In some
cases, this may still be good advice, but this case shows that this
is not a universally applicable rule of thumb.
