The issue of when something is “published” on the internet is at the centre of Mr Justice Fulford’s decision that two articles giving details of previous allegations against PC Simon Harwood were a breach of the strict liability rule.

Both articles were published in 2010, and had been available on the Mail Online archive since then, but only if a would-be reader actually searched for them, either on the website itself, or via a search engine such as Google.

Section 2 of the Contempt of Court Act 1981 defines a publication in relation to the strict liability rule as including “any speech, writing, programme included in a cable programme service or other communication in whatever form, which is addressed to the public at large or any section of the public”

But it states in section 2 (3):

“The strict liability rule applies to a publication only if the proceedings in question are active within the meaning of this section at the time of the publication.”

Mr Justice Fulford held that the phrase “at the time of the publication” actually “encompasses the entire period during which the material is available on the website from the moment of its first appearance through to when it was withdrawn”.

He based this finding on the words of Lord Osborne in H M Advocate v William Frederick Ian Beggs (No2) (2002 S.L.T. 139). Lord Osborne, who was the presiding judge at Beggs’ trial on a murder charge, said at paragraph 22 of the opinion:

“It appears to me unrealistic to make a distinction between the moment when the material is first published on the web site and the succeeding period of time when it is available for access on demand by members of the public. It appears to me that the better view is that the situation affecting the web site may be compared with a situation in which a book or other printed material is continuously on sale and available to the public. During that whole period, I consider that it would be proper to conclude that the material was being published.”

These remarks prompted Des Hudson, managing director of the Herald, Sunday Herald and Evening Times in Glasgow, to say:

“In the light of the ruling we have been looking at what we should be doing to comply. And we came to the view that we would have to be aware of every case and decide whether we had any material on our archive.  The only way we could do that cost-effectively would be to take down the archives completely.“

Jonathan Caplan QC, for Associated Newspapers, which publishes the Daily Mail, Mail on Sunday and runs the Mail Online website, argued at a hearing before Mr Justice Fulford that Lord Osborne’s comments were obiter – and wrong.

The Contempt of Court Act, he said, was concerned with material which was published and offered to the public on a contemporary basis – which did not cover material stored in an online archive.

He also pointed out that if what Lord Osborne said was correct, this would raise a question over whether newspapers would need to make sure that they did not keep physical, printed, copies of material in their archives or libraries.

The limitation period for a defamation action is one year from the date of publication, in relation to printed material – and at present Parliament is dealing with a Defamation Bill which would introduce a single publication rule, so that the same limitation period applies to online versions of the same material.

If Lord Osborne’s view is correct, then material which does not breach the strict liability rule at the time it is first published could later be held to breach the strict liability rule because copies were still available and in the public domain at the time specific proceedings became active.

It also means that publication is not a single event, but a continuing activity, even in relation to a book or printed issues of newspapers or magazines.

So a book detailing the criminal activities of a high-profile character might be held to breach the strict liability rule if the subject were to be arrested and charged with a murder some three or four years after the book’s publication.

But one might wonder whether any court would seriously consider ordering publishers to withdraw unsold copies of the book from bookshops, or require libraries the length and breadth of the country to remove copies from the shelves.

The real issue, and one which the courts have seemed unwilling to grasp, is not that the material is available, but that advances in technology have made it much more readily available than in the past.

Instead of having to write to a newspaper to obtain back copies, or visit the cuttings library to get photocopies of previous coverage of an individual’s activities, anybody, potential jurors included, can find much of what might have been published on the internet from the comfort of their own front room.

This is the new reality with which the courts have to cope – and the solution does not lie in trying to turn the technological clock back.

This article originallyappeared on the online subscription service Media Lawyer and is reproduced with permission and thanks.