The internet never forgets.
Internet libel and the permanence of content appearing on the web has given rise to a large number of lawsuits against newspapers and other publishers of material online.
In traditional libel actions plaintiffs must file suits within a year of the date of the offending publication, otherwise their actions will be statute barred.
However, a 160 year old English precedent, when applied to Internet publishing, means that each separate act of the downloading of an article on the internet triggers a fresh limitation period.
As reported by p2pnet, the UK Ministry of Justice is re-evaluating an 1848 English precedent, which is likely to have far reaching implications for the future of internet publishing. The internet defamation consultation questions being examined by the Ministry of Justice can be found here.
The Ministry is assessing the relevancy of the so called 160 year old multiple publication rule against the backdrop of advances in technological development. These technological advances mean that single statements can reach millions of people in different jurisdictions, giving rise worldwide dissemination of single statements.
The rule was first enunciated in the English case of Brunswick v Hamer (1849) 14 QB 185. This old libel case still governs the law of libel on the internet under English law, Irish law and in most Commonwealth jurisdictions. The effect of the ruling is that each individual libellous publication gives rise to a separate cause of action, with a separate limitation period attached to it.
The Duke of Brunswick case involved an exiled German ruler Karl 11, Duke of Brunswick and Luneberg; the Duke of Brunswick 8 Luneberg (1804-1873). After finding out in 1848, 17 years later that he had been defamed in an old London newspaper, the Duke sent his servant to procure a copy of the article published in 1830. As the then six year limitation period for bringing an action for defamation had expired, the Duke relied upon the sending of his servant to procure copies of the offending article to bring defamation proceedings for injury to his reputation.
The Duke also obtained a copy of the paper from the London publisher of the newspaper for this very purpose, and sued based on the two copies of the original article retrieved. Although there was a statute of limitations in place barring the bringing of actions after six years, the Queens Bench held that both acts of procuring the two articles by the Duke amounted to a new publication of a libel, giving rise to a fresh cause of action in respect of each.
The Court agreed that Harmer’s receipt of a back issue of the offending publication in 1848 constituted a separate act of publication, with the statutory time limit for bringing action commencing at the point in time it was received, rather than the date of it’s printing and distribution 17 years previously.
Civil libertarians and media publishers argue that, within the internet context, publication should only be libellous when first posted on the internet. To interpret the law otherwise would have a chilling effect on freedom of speech on the internet and constitute an abuse of process.
INTERPRETATION OF THE DUKE OF BRUNSWICK CASE
In subsequent case law in Ireland and England, this case has been interpreted to mean that a libel occurs on each separate occasion a user downloads libellous material in an online environment.
Based on the reasoning in this ruling, newspapers confront the prospect of infinite libel suits which can be lodged every time an article is downloaded, even where the act of downloading occurs years after the original date it is posted. Theoretically, the aggrieved person can sue in any jurisdiction in the world where the downloading of the offending publication occurs, providing of course that they can demonstrate some relevant connection with the jurisdiction where the downloading occurs.
In Loutchansky v Times Newspapers  QB 783, the Court of Appeal elected not to follow the US rule which had since sought to limit the damage to single publications of material. The Court favoured the Duke of Brunswick case, applying the precedent to the case of archived internet material. This had the practical effect that an action of publication occurred within the limitation period for bringing an action on each and every occasion the newspaper’s online archive was accessed.
The case was appealed to the European Court of Human Rights. In 1998 the United Kingdom incorporated the standards enshrined in the European Convention on Human Rights (ECHR) by enacting the UK Human Rights Act. Under s 6(3) of the Act the Courts are considered “public authorities” and are therefore required to to act in accordance with the standards recognised in the ECHR. There was a lot of discussion about what effect the Human Rights Act would have on certain areas of common law, including but not limited to defamation, where important freedoms are at stake.
The Defendant newspaper The Times contended that the Duke principle exposed publishers to potential litigation without any time constraints. The defendant argued that the principle therefore violated Article 10 of the European Convention on Human Rights. See also Times Newspapers Ltd (Nos 1 and 2) v the United Kingdom (Applications 3002/03 and 23676/03, 10 March 2009) the ECHR (fourth section). It was unanimously held by the Court that there had been no violation of Article 10 of the Convention. The case in question revolved around two articles regarding the financial dealings of the Plaintiff. Each article was posted on the newspapers’ website on the day it also appeared in print form.
The defendant Loutchansky instigated libel proceedings over the articles, with the newspaper conceding they were defamatory and relying on the defence of qualified privilege. The articles suggested the Plaintiff had abused his position as a police officer with the Metropolitan Police extradition unit by corruptly accepting bribes from Russian underworld figures in exchange for selling intelligence relating to attempts to extradite them to Russia to face criminal charges. The Times pleaded justification, arguing that the content of the articles were of sufficient public importance that they were duty bound to publish them, being matters of high public interest.
The Times prevailed in respect of their defence of qualified privilege in relation to the article of June 2, 2006, however in respect of the internet publication, the Court concluded that the website article was capable of damaging the reputation of a person forever. The presence of the website material was likened to a permanent tattoo. Pending the ultimate resolution of the case, the articles remained on the website, which inspired Loutchansky to bring fresh libel proceedings pertaining to the internet publication. The professional standards investigation in the meantime had resulted in a finding that there was insufficient evidence to proceed with charges resulting in disciplinary action.
After the investigation had concluded, the claimant argued that the Times couldn’t rely on the website publication as being a fair characterisation of the situation, and there were no public interest factors which applied in relation to the website publication. The Times were found to have been irresponsible in not removing the website material, raising questions about the claimant’s honesty in 2006.
CRITICISM OF THE DUKE OF BRUNSWICK PRECEDENT
The criticism of the old Duke of Brunswick ruling stems from the fact that it has made London a popular location today for the launching of internet libel cases brought by celebrities, overseas businessmen, and persons accused of financing terrorism. The reason for this is that British laws are more favourable to prosecuting defamation actions than the US whose libel laws are not only less generous to plaintiffs, but which also has a single publication rule. This divergence in law encourages forum shopping, with Plaintiffs using the most favourable libel laws to prosecute a case.
Based on the reasoning in the 160 year old case, all that needs to be demonstrated is that there was a publication, however small it’s circulation, and that there is some connection with the jurisdiction of England. That connection may be a connection to the jurisdiction, or the existence of a reputation the Plaintiff has there which has been damaged.
The libel case law in recent years in England has mainly involved foreign businessmen in Russia and Saudi Arabian figures accused of financing terrorism bringing law suits in London Courts to censor critics and stifle freedom of speech.
In Berezovsky v Michaels  UKHL 25, Russian tycoon Boris Berezovsky launched action against the UK Forbes magazine, a case which dragged on for six years before being resolved in the defendant magazines’ favour. The defendant magazine submitted that the case was more appropriately heard in either the US or Russia, however the House of Lords, applying the Duke of Brunswick principle, gave leave to Berezovsky to sue in England, based on his connection to and reputation in England.
A minority of judges remarked that the Russian was engaging in libel tourism, selecting the UK courts as he knew that he was unlikely to prevail in the US or Russia. The case was followed in Dow Jones v Gutnick (2002) 210 CLR 575 by the High Court of Australia.
The case gave rise to a great deal of controversy and outrage by American media publishers. As stated above, American case law states that a defamatory publication gives rise to a single cause of action for libel which runs from the time of publication, as does the statute of limitations. See Gregoire v GP Putnam’s Sons 81 NE 2d 45 (1948).
The United States case law means that there can only be one single act of publication, being the date at which the act of publication occurs. This solitary cause of action arises in the place of publication where the article appears.
REFORM OF LIBEL LAW IN THE UK
The ‘ public consultation paper by the UK Ministry of Justice raises questions regarding the continuing appropriateness of the principle in the Duke of Brunswick case in today’s internet publishing world.
The global nature of the internet renders all online publishers, website owners and ISPs (irrespective of their geographical location or the location of the servers upon which the material they published is situated), vulnerable to the relatively generous body of UK defamation law.
The absence of a single publication rule also exposes publishers of online internet archives to defamation for material placed online for many years after the original publication.
Whilst there is potential protection for ISPs as re-publishers of defamatory material, the extent of that coverage is unclear, encouraging online intermediaries to take a conservative approach when publishing online.
Where publishers act quickly to remove allegedly defamatory material they are more likely to be held harmless for their publication. The desirability of minimising loss leads to a form of censorship of investigative journalism.