Libel Reform Debate: Part 3 The Multiple Publication Rule

In an earlier post we suggested that there should be a mature debate on the various issues raised by Libel Reform Campaign.  We have previously discussed the burden of proof in libel cases and the idea of a cap on libel damages.  This week we discuss the proposed introduction of a “single publication rule”

Background

Under English libel law, ‘publication’ occurs on each occasion that a statement is accessed as opposed to the occasion on which it is – in lay terms – published.  In the leading modern case of Loutchansky v Times Newspapers Ltd ([2002] QB 783) the Court put it in this way:

“It is a well established principle of the English law of defamation that each individual publication of a libel gives rise to a separate cause of action, subject to its own limitation period”

This is sometimes known as the rule in the Duke of Brunswick’s case based on an unsatisfactory decision that a the purchase of a single back issue of a newspaper 17 years after its original publication was sufficient to found a claim for libel.

In the Loutchansky case, the Court of Appeal rejected a challenge to the multiple publication based on the contention that it was an unjustified restriction on the right to freedom of expression under Article 10 of the European Convention on Human Rights, particularly when it came to the maintenance of archives.  The Court said

“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. [74]

Turning to the appellants’ wider argument, it is true that to permit an action to be based on a fresh dissemination of an article published long ago is at odds with some of the reasons for the introduction of a 12 month limitation period for defamation. But the scale of such publication and any resulting damage is likely to be modest compared with that of the original publication. In the present case, as the Judge observed, the action based on the internet publication is subsidiary to the main action. [75]

This conclusion was supported by the Court of Human Rights which rejected Times Newspapers’ contention that the “multiple publication rule” was a violation of Article 10 (see Times Newspapers Ltd  (Nos 1 and 2) v. United Kingdom Judgment of 10 March 2009).

The High Court of Australia also rejected arguments in favour of a “single publication” rule in the case of Dow Jones v Gutnick ([2002] HCA 56), holding that:

“Harm to reputation is done when a defamatory publication is comprehended by the reader, the listener, or the observer. Until then, no harm is done by it. This being so it would be wrong to treat publication as if it were a unilateral act on the part of the publisher alone. It is not. It is a bilateral act – in which the publisher makes it available and a third party has it available for his or her comprehension” [26].

The Reform Arguments

Despite the apparent judicial consensus in the non-US common law world, there has been a strong impetus in favour of reform in this area in recent years.

In October 2009 the Ministry of Justice published a consultation paper on “Defamation and the internet: the multiple publication rule” on the question as whether a single publication rule should be introduced for online publications.  There were 34 responses to the consultation, summarised in a paper published in March 2010.  The Ministry summarised the results as follows:

“55% of those who responded favoured the introduction of a single publication rule, as against 29% who favoured the retention of the multiple publication rule. 11% favoured the third option put forward in the paper, which was the retention of the multiple publication rule, whilst extending the defence of qualified privilege where a publisher is willing to place a notice on the archive”.

It noted a general consensus that any change in the law should apply to all forms of publication and not just to online archives.  It was concluded that

“the Government considers on balance that it is appropriate in principle to introduce a single publication rule (with discretion to the court to extend the period as necessary). Further consideration will be given to the detailed provisions to govern the operation of the single publication rule”.

The report “Free Speech is not for Sale” contends that “The definition of ‘publication’ defies common sense”

“The definition of ‘publication’ in libel is no longer appropriate for the age of global communication and the internet. Each newspaper sold or website hit currently constitutes a new libel – the so-called ‘multiple publication’ rule – a principle that renders online newspaper archives uniquely vulnerable to libel actions. The rule dates from the 1849 Duke of Brunswick case, in which the Duke’s manservant travelled from Paris to London in order to purchase a copy of a 17-year-old journal in which the Duke belatedly found himself to be defamed and consequently sued for libel.

We welcome the government’s consultation on single publication and believe that the introduction of a single publication rule would bring online publication in line with print, ensuring that no libel action can be brought a year after publication. We recommend that the Duke of Brunswick rule be abolished”.

The Report of the House of Commons Select Committee on Culture Media and Sport, recommended a one year limitation period for actions brought in respect of publications on the internet, subject to the court’s discretion to extend the limitation period under section 32A of the Limitation Act 1980 where the claimant did not know about the article, together with a right to obtain a court order to correct a defamatory statement. It also proposed that electronic archives should be protected by statutory qualified privilege after one year subject to them being flagged with a warning where there has been a complaint.[230-231]

The issue was considered in the Report of the Libel Working Group, the majority of which concluded that

“a single publication rule (with discretion) should be the preferred option in circumstances where the republication of allegedly defamatory material is by the same publisher”  (p.21).

There was no consensus where the republication was by a different publisher.

The issue is addressed in two ways by Lord Lester’s Defamation Bill. First, clause 10 provides as follows

(1)  In any case to which subsection (2) applies—

(a)   the first occasion on which the publication is made available to the public generally (or to any section of the public) is to be regarded for all purposes as the date of publication of each subsequent publication; and

(b)  in an action for defamation based on any publication to which this section applies, the cause of action is to be treated as having accrued on that date.

(2) This subsection applies to any publication (such as a book, newspaper, periodical or material in an archive) which—

(a)   is published by the same person on multiple occasions; and

(b)   on each occasion, has the same, or substantially the same, content.

(3)    Subsection (2) does not apply where a subsequent publication is made in a materially different manner, but this is without prejudice to that publication itself constituting a first publication for the purposes of subsection (1).

This creates creates a single publication rule for the original publisher.  The importance of this is that the limitation period will expire 1 year from the first publication.  There is, however, a discretion to extend time.  According to the Explanatory Notes, this provision “would allow publishers to retain archives without the fear of open-ended liability” [117].

Second, clause 8 and para 11 of Schedule 1 introduces a new defence of qualified privilege in relation to

“A fair and accurate copy of, extract from or summary of material in an archive where:

(a)        the material has been publicly available online for a period of at least 12 months starting with the date of first publication by or on behalf of the archive; and

(b)        in the course of that period, no challenge has been made, whether in the courts or otherwise, which indicates that the material is considered to be defamatory”.

This is “subject to explanation and contradiction”, in other words the publisher loses the defence if he fails, when requested, to publish a reasonable statement by way of explanation and contradiction from the claimant.

Responses to the Proposal

In the report by Professor Mullis and Dr Scott “Something Rotten in the State of English Libel Law?” the authors argue that

“A single publication rule would automatically absolve both the author and the host of an impugned archive statement of any responsibility for its making after the requisite limitation period following first publication. We did not consider that this is appropriate. Not every author of a defamatory statement – or every archivist of online content – is deserving of exoneration from liability. In the online environment, the availability of past statements can continue to be horrendously damaging”

They refer to their response to the Ministry of Justice consultation where they reject a move towards a single publication rule.  They recognise the problems created for online archivist-publishers by the current multiple publication rule but instead propose a new defence of ‘non-culpable republication’. The defence would be available to an archivist-publisher after the elapse of one year from the point of initial publication.  The publisher would be required to append a notice to the online article, indicating that a challenge to the accuracy of the piece had been made under the new defence.  This would have to include a summary of the specific complaints brought. The publisher would be free to choose not to append the notice, assert the truth of the material and defend any resulting libel action.

The Strasbourg Cases

As we have mentioned, the “multiple publication rule” was considered by the Court of Human Rights in the Loutchansky litigation.  In its decision in Times Newspapers (Nos 1 and 2) v United Kingdom, (Judgment of 10 March 2009).

“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” [47].

As a result, the Court did not need to deal with the wider argument about the “multiple publication rule” but did note that “libel proceedings brought against a newspaper after a significant lapse of time may well, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under Article 10” [48]

Discussion

A “single publication rule” is difficult to justify as a matter of legal theory – the cause of action in libel arises when there is publication to a person and a new cause of action arises every time a new person reads the libel.  The proposed Clause 10 of the Lord Lester Defamation Bill does not redefine the essential nature of the cause of action but simply “backdates” causes of action from the subsequent publications to the date of the first.  Furthermore, although the “multiple publication rule” has been heavily criticised for a number of years it is difficult to find many practical examples of problems which it has caused.  Whilst, in theory, actions would lie against keepers of archives and librarians who lend out old defamatory books, there do not appear to be many such actions before the courts or reports of practical difficulties being caused.

Nevertheless, the basic issue under this head relates to limitation and, in particular, to the position of archives and online material.  There is a wide consensus that the operation of the current rule is potentially unjust and runs contrary to the public policy considerations which impose a short limitation period on libel actions.  It seems to us that additional protection should be provided for the keepers of archives and for internet publications.

At first sight, the Lord Lester Defamation Bill privilege proposal is far too wide – it would provide a complete defence (subject to explanation and contradiction) to a newspaper which, for example, reproduced a defamatory allegation from the archive of an obscure website on its front page. This is not fanciful suggestion as there a number of “abuse” websites which collect serious defamatory allegations – from, for example, disgruntled ex employees or unhappy consumers.  On Lord Lester’s proposal, if we have understood it right, if no complaint was made about this – because, for example, the site was operated in a jurisdiction where legal challenge is impossible – then repetition of the allegation would leave the claimant without remedy. This could lead to a plethora of “story-laundering” of authored pieces  from the blogosphere or obscure media  to mainstream media with effective impunity.

It seems to us that reform in this area should be targeted on the mischief to be dealt with – rather than a “deeming” provision which introduces the legal fiction that all publications take place the first time something was published. We would, in principle, favour an “archive privilege” – but its limits need to be carefully thought through to avoid potential abuse.

We would, of course, welcome guest posts from anyone who wants to put forward a different view.   We would welcome  posts setting out the arguments in defence of this proposal, or of the proposals to “reverse the burden of proof” which was considered in the first post in this series and to cap libel damages, which was considered in the second post in this series.