The Times newspaper had argued that the burden of indefinite liability was so onerous that it would have a 'chilling effect' on archive publishers, but the ECHR has reaffirmed that a new defamation action can be taken every time online defamatory material is accessed.
The Times had said that this created 'ceaseless liability' for newspaper publishers and that this would result in a restriction on free speech.
Article 10 of the European Convention on Human Rights (the Convention) says: "Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers".
"[The Times] argued [in the High Court] that the Internet publication rule breached Article 10, pointing out that as a result of the rule newspapers which maintained Internet archives were exposed to ceaseless liability for re-publication of the defamatory material," said the ECHR's ruling. "[The Times] argued that this would inevitably have a chilling effect on the willingness of newspapers to provide Internet archives and would thus limit their freedom of expression."
A Russian businessman named in The Times's story but known in the case only as GL sued over articles published in 1999 which claimed that he was being investigated in the UK and US over money laundering allegations.
GL sued first over the newspaper article and then, one year later, over its publication and continuing availability on the internet. The Times settled, but not before it had lodged an objection to the pursuit of a separate case related to the online publication.
"The applicant alleged that the rule under United Kingdom law whereby each time material is downloaded from the Internet a new cause of action in libel proceedings accrued ('the Internet publication rule') constituted an unjustifiable and disproportionate restriction on its right to freedom of expression," said the ECJ ruling, outlining The Times' case.
The High Court ruled that, based on a case from 1830 involving the Duke of Brunswick, a new defamation occurred every time a piece was published. This meant, it said, that a new cause of action occurred every time defamatory material was accessed on the internet.
A 2001 case involving Demon Internet bolstered that view and strengthened the precedent that new publication takes place every time an article is accessed. In effect it means there is no statute of limitation on defamation actions where stories are kept in an open online archive.
"In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting," said the ruling in the Demon Internet case. "Thus every time one of the defendants' customers accesses 'soc culture thai' and sees that posting defamatory of the plaintiff there is a publication to that customer.”
The Times had wanted the UK to adopt the same approach as the US. In 1948 a US court ruled that the Duke of Brunswick precedent was outdated, and that a limitation period should run from the initial publication of material. This is called the 'single publication rule'.
The ECHR said that it had already ruled in a case involving The Guardian and The Observer newspapers that the right to freedom of expression applied to newspaper readers as well as publishers.
"The Court has consistently emphasised that Article 10 guarantees not only the right to impart information but also the right of the public to receive it," it said. "In light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public's access to news and facilitating the dissemination of information generally. The maintenance of Internet archives is a critical aspect of this role and the Court therefore considers that such archives fall within the ambit of the protection afforded by Article 10."
The Court said the court case over the allegations clearly interfered with the free expression of The Times, but that it had to rule whether that was permitted interference or not.
"The Court … considers that the second action constituted an interference with [The Times's] right to freedom of expression. Such interference breaches Article 10 unless it was 'prescribed by law', pursued one or more of the legitimate aims referred to in [the Convention] and was 'necessary in a democratic society' to attain such aim or aims," it said.
The ECHR found that the interference was lawful because of the UK legal precedent in the Duke of Brunswick case; that protecting the reputation of others was a legitimate aim; and that the court's actions in allowing action against the internet publication were within the boundaries of what was 'necessary in a democratic society' to attain the aims.
"The Court observes that the Internet archive in question is managed by the applicant itself," said the ruling. "It is also noteworthy that the Court of Appeal did not suggest that potentially defamatory articles should be removed from archives altogether. In the circumstances, the Court, like the Court of Appeal, does not consider that the requirement to publish an appropriate qualification to an article contained in an Internet archive, where it has been brought to the notice of a newspaper that a libel action has been initiated in respect of that same article published in the written press, constitutes a disproportionate interference with the right to freedom of expression."
"The finding by the domestic courts in the second action that the applicant had libelled the claimant by the continued publication on the Internet of the two articles was a justified and proportionate restriction on the applicant's right to freedom of expression," it said. "There has accordingly been no violation of Article 10 of the Convention."