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THE LAW
OF DEFAMATION AND THE INTERNET by |
Update 3
Loutchansky
v Times Newspapers Ltd [2001] EWCA Civ 1805 (English
Court of Appeal,
Court
of Appeal decision concerning, among other matters, the proper construction of
s 4A of the Limitation Act 1980 (UK) in the context of Internet publications,
and the need to attach warnings to online publications which are the subject of
defamation proceedings
This was a successful appeal from the decision of Gray J in
Loutchansky v Times Newspapers Ltd (No 4) [2001]
EMLR 898. A copy of the Court of Appeal’s decision can be found by following
this link.
The Court’s wide-ranging decision considers, among other
matters, the scope of the Reynolds form of the
defence of qualified privilege: see Reynolds
v Times Newspapers Ltd [2001] 2 AC
127; The Law of Defamation and the
Internet, paras 11.14–11.21, the
operation of the summary disposal procedure in ss 8-11 of the Defamation Act
1996 (UK), and the operation of the substance-procedure distinction in relation
to damages in Russian defamation proceedings.
This update considers two aspects of the Court of Appeal’s
decision of particular relevance to online publications: the running of time in
Internet defamation cases, and the need to attach warnings to online
publications which are the subject of defamation proceedings.
Overview
of relevant facts
The respondent is a businessman holding dual Russian and
Israeli nationalities. He sued in relation to articles appearing in The
Times on
Running
of time in Internet defamation cases
The publishers had sought before Gray J to amend their
defence to contend that the limitation period in relation to the online version
of the articles had begun to run as soon as they were first posted on the
website, and had expired prior to the commencement of the proceeding on
Section 4A of the Limitation Act 1980 provides that
no action for libel or slander, slander
of title, slander of goods or other malicious falsehood shall be brought after
the expiration of one year from the date on which the cause of action accrued.
Gray J had refused leave to amend, on the ground that the
publishers’ argument was unsustainable. The Court of Appeal upheld Gray J’s
conclusion.
Their Lordships noted that it was 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:
Duke of Brunswick v Harmer [1849] 14 QB 185; see also The Law of Defamation and the Internet, paras 13.20–13.21. The publishers were, in effect,
asking the Court to depart from previous authority and to establish in
In rejecting these contentions, the Court of Appeal said,
para 74:
We do not accept that the rule in Duke of Brunswick imposes a restriction on the readiness to maintain and
provide access to archives that amounts to a disproportionate restriction on
freedom of expression. We accept that the maintenance of archives, whether in
hard copy or on the internet, has a social utility, but consider that the
maintenance of archives is a comparatively insignificant aspect of freedom of
expression. Archive material is stale news and its publication cannot rank in
importance with the dissemination of contemporary material. Nor do we believe
that the law of defamation need inhibit the responsible maintenance of
archives. Where it is known that archive material is or may be defamatory, the
attachment of an appropriate notice warning against treating it as the truth
will normally remove any sting from the material.
The effect of the Court’s decision is that, for the
purposes of s 4A of the Limitation Act 1980, time begins to run in respect of
the online publication of defamatory material at the time that material is
read, heard or seen, rather than at the time it is first published. Defamatory
material accessible via the Internet may therefore be actionable in
Failure
to warn that archived material was the subject of defamation proceedings
The Court of Appeal also upheld Gray J’s decision to
strike-out the publishers’ defence of qualified privilege in relation to the
online versions of the articles, observing at para 79:
The failure to attach any qualifications to the articles
published over the period of a year on The Times’ website could not possibly be
described as responsible journalism. We do not believe it can be convincingly
argued that the appellants had a Reynolds
duty to publish those articles in that way without
qualification.
The effect of the Court’s decision is that, in order to
minimize the risk of ongoing liability for defamatory material stored in an
online archive, publishers should remove or disable access to that material
immediately after the commencement of defamation proceedings, or attach a
warning to the material noting that it is the subject of defamation proceedings
and that the truth of the material is hotly contested.
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© Matthew
Collins 2001