Times v. UK: another cop out

The European Court of Human Rights has just notified its judgment in the case of Times v. UK, which concerned the question of the application of the UK's libel laws to newspaper Internet archives. This case raised two important questions of principle:

1. whether archived news items should be considered to be published afresh whenever they are read and therefore potentially open to a defamation action many years after their original publication
   
2. whether online publications should be required to monitor their entire archive and append notices to old news items whenever libel proceedings are initiated with regard to them

The Court manage to wrangle out of ruling on the first point, and on the second question considered that, on the facts of the case, there was no violation. It refused to rule on the wider issue of the chilling effect of the continuing vulnerability of archived stories to libel threats but conceded 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."

This is another very weak Strasbourg judgment. Arguably wrong even on the facts, I take even greater exception to the Court's narrow-minded assertion that "it is not necessary for the Court to consider in detail the broader chilling effect allegedly created by the application of the Internet publication rule in the present case" (paragraph 48). Why on earth not? Surely by ruling on points of principle the Court would redeems its position as a court of authority rather than a narrow last instance adjudicator of facts, and in the process begin to rid itself of its growing backlog of more than 100,000 cases. What Europe needs - with all respect and in the fullest understanding of the poor decisions that continue to come out of some countries - is not a court of last appeal that is collapsing under its caseload, but a constitutional court that lays down the basic rules and principles. So the current decision is not just poor for media freedom in Europe, but another step on the road towards a total collapse of the Strasbourg system.