European Court of Human Rights
Published March 11, 2009
Times Newspapers Limited (Nos 1 and 2) v United Kingdom (Applications Nos 3002/03 and 23676/03)
Before L. Garlicki, President and Judges Sir Nicolas Bratza, G. Bonello, L. Mijovic, P. Hirvelä, L. Bianku and N. Vucinic Section Registrar L. Early
Judgment March 10, 2009

The European Court of Human Rights held, unanimously, that a court’s finding that Times Newspapers Ltd had libelled G. L. by the continued publication on its internet site of two articles was not a disproportionate restriction on the newspaper’s freedom of expression, as guaranteed by article 10 of the European Convention on Human Rights.

The applicant, Times Newspapers Ltd, was the owner and publisher of The Times, registered as a newspaper in England. It published two articles, on September 8, and October 14, 1999, respectively, reporting on a money-laundering scheme carried out by G. L., whose name was set out in full in the original article. Both articles were uploaded on to The Times website on the same day as they were published in the paper version of the newspaper.

In December 1999, G. L. brought proceedings for libel against the Times Newspapers Ltd, Mr Peter Stothard, its Editor, and Mr David Lister and Mr James Bone, the two journalists who signed the two articles printed in the newspaper.

The defendant did not dispute that the articles were potentially defamatory but contended that the allegations were of such a kind and seriousness that it had a duty to publish the information and the public had a corresponding right to know.

While the first libel action was under way, the articles remained on The Times website, where they were accessible to internet users as part of the newspaper’s archive of past issues.

In December 2000, G. L. brought a second action for libel in relation to the continuing internet publication of the articles.

Following that, the defendant added a notice to both articles in the internet archive announcing that they were subject to libel litigation and were not to be reproduced or relied on without reference to TNL legal department.

The defendant subsequently argued that only the first publication of an article posted on the internet should give rise to a cause of action in defamation and not any subsequent downloads by internet readers. Accordingly, the second action had been commenced after the limitation period for bringing libel proceedings had expired.

The court disagreed, holding that, in the context of the internet, the common-law rule according to which each publication of a defamatory statement gave rise to a separate cause of action meant that a new cause of action accrued every time the defamatory material was accessed.

The defendant appealed, arguing that the application of the common-law rule to internet publications gave rise to ceaseless liability of newspapers and could ultimately have a chilling effect on their readiness to provide internet archives and thus limit their freedom of expression.

The Court of Appeal (The Times December 7, 2001) dismissed the appeal stating that the maintenance of archives was a relatively small aspect of the freedom of expression and that it need not be inhibited by the law of defamation as the publication of a notice warning readers against treating potentially defamatory material as truth would normally remove any sting from the material.

On April 30, 2002, the House of Lords refused leave to appeal.

Relying on article 10, guaranteeing freedom of expression, TNL complained that the internet publication rule breached its freedom of expression by exposing it to ceaseless liability for libel.

The European Court of Human Rights noted that while internet archives were an important source for education and historical research, the press had a duty to act in accordance with the principles of responsible journalism, including by ensuring the accuracy of historical information.

Further, the Court observed that limitation periods in libel proceedings were intended to ensure that those defending actions were able to defend themselves effectively and that it was, in principle, for contracting states to set appropriate limitation periods.

The Court considered it significant that although libel proceedings had been commenced in respect of the two articles in question in December 1999, no qualification was added to the archived copies of the articles on the internet until December 2000.

The Court noted that the archive was managed by the applicant itself and that the domestic courts had not suggested that the articles be removed from the archive altogether.

Accordingly, the Court did not consider that the requirement to publish an appropriate qualification to the internet version of the articles constituted a disproportionate interference with the right to freedom of expression. There was accordingly no violation of article 10.

Having regard to that conclusion, the Court did not consider it necessary to consider the broader chilling effect allegedly created by the internet publication rule.

It none the less observed that, in the present case, the two libel actions related to the same articles and both had been commenced within 15 months of the initial publication of the articles.

The applicant’s ability to defend itself effectively was therefore not hindered by the passage of time. Accordingly, the problems linked to ceaseless liability did not arise.

However, the Court emphasised that while individuals who were defamed had to have a real opportunity to defend their reputations, libel proceedings brought against a newspaper after too long a period might well give rise to a disproportionate interference with the freedom of the press under article 10 of the Convention.

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