Jack Straw is to examine the “chilling” menace of internet libel which makes
newspapers liable to legal action every time an article is downloaded from
their websites.
The move by the Justice Secretary comes as the European Court of Human Rights
yesterday dismissed a test challenge brought by Times Newspapers.
The Strasbourg-based court ruled in two appeals brought by the newspaper that
there had been no breach of article ten which protects freedom of expression.
But it did indicate the need for some time restraints to stop people endlessly
being able to bring libel actions, possibly years after an article is
published, just by downloading it.
The judges said: “While an aggrieved applicant must be afforded a real
opportunity to vindicate his right to reputation, 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.”
The Times had argued that the present law, which enables a new libel
suit to be lodged every time material is downloaded from the internet - even
years after its original publication in the newspaper - was “an
unjustifiable and disproportionate restriction on its right to freedom of
expression.”
The Ministry of Justice is shortly to issue a consultation on the whole issue
of defamation and the internet.
Ysterday Maddie Mogford, media lawyer with Reynolds Porter Chamberlain, who
acted for The Times, said that as a result of the ruling, “online
publishers remain at risk of libel actions over stories posted more than 12
months ago,.”
That was despite the one-year time limit in which libel actions must be
brought over printed articles, she said.
“It is a great pity that at a time when electronic publication is so prevalent
and it seems that electronic archives will overtake physical paper ones, the
court did not take the opportunity to review the application of archaic law
to new media.”
Lord Pannick, QC, a leading human rights lawyer, said: “It is unfortunate that
the European Court did not decide the issue of considerable importance and
concern for freedom of expression. The internet publication rule - allowing
actions for libel whenever an internet site is accessed, however old the
material – is an unjustifiable restriction on free speech.”
But he added: “Times Newspapers, and all who value free speech, can take
considerable comfort from the fact that the European Court strongly
suggested that it would strike down the internet rule if a case involving “a
significant lapse of time” were to arise.”
The test challenge arose over two articls concerning the Russian-born
businessman, Grigori Lutchansky: the first, published in September 1999,
headlined “second Russian Link to Money Laundering”; and the second, in
October 1999, headlined “Trader linked to mafia boss, wife claims.”
Each article was posed on the newspaper webste on the day it was published in
the newspaper.
In December 1999 Mr Loutchansky brought libel proceedings over the two
articles. The newspaper acceped they were defamatory but relied on the
defence of qualified privilege, arguing that they were of such a kind and
seriousness that they had a duty to publish, and the public a right to know.
While the proceedings were ongoing the articles remained on the newspaper’s
webste and in December 2000 Mr Loutchanksy lodged fresh libel proceedings
over the internet publication.
Mr Loutchansky won his action but the newspaper appealed the High Court ruling
over “single publication,” arguing that articles are only actionable when
first posted on the internet.
AT the heart of the issue is a Victorian case dating back to 1849, involving
the Duke of Brunswick, which said that each publication is a new publication.
In the internet age, that means each hit on a website, Times Newspapers
argued, enabling peole to sue for libel well beyond the usual one-year
limitation period.
In one recent such case, a loan orboker had lent a couple a sum of money which
spiralled into a massive debt. The broker was subsequently investigated but
his licence not revoked, so four years later he complained about the piece
on The Times archive.
The newspaper has had to remove the piece but the journalists in question have
now left and it is too late now to attempt to mount a defence of the
article.
