In 1848, the Duke of Brunswick sent his agent to buy an 18-year-old copy of the Weekly Dispatch from the publishers' office. It had come to his attention that an article in the 1830 volume of that magazine was defamatory of him, and he wished to do something about it. Despite the fact that the statute of limitations back then was set at six years and the duke was able to prove only that two copies were still in circulation – the one his agent had bought and another at the British Library – the court allowed the action to go ahead and eventually awarded him £500, a tidy sum in those days.
In an ideal world, only legal historians would be familiar with this ancient tale.
Unfortunately, in the non-ideal world that we inhabit, journalists and media lawyers alike are familiar with the case; it provides the foundation of the "multiple publication rule" which, as applied today, means that every time someone accesses a page on the internet it is deemed to be "published" afresh. The result: the statute of limitations never runs out, and actions for libel can potentially be launched in perpetuity.
This is highly problematic for anyone who publishes online. Most articles, once published on the internet, are archived online, usually with their own URLs. They can show up in search results and remain accessible to one and all.
Imagine, then, the scenario of an internet user engaging in a spot of vanity-Googling and discovering, somewhere in the search results, an article written about him several years ago and published in the online edition of a newspaper. It alleges – let's say – some form of misconduct in public office. The journalist who wrote the piece has since moved on and the editor may not have access to the journalist's notes or other material relevant to the story. Our random internet user sues for libel; how is the newspaper supposed to defend a case like that? Key witnesses may have disappeared and defences such as qualified privilege may have expired with the passage of time. Surely such a case ought to be thrown out; yet the law would allow it.
Many other countries spotted some time ago that the multiple publication rule produces absurd results. The New York appeals court ruled as early as 1948 that it had "its origin in an era which long antedated the modern process of mass publication and nationwide distribution of printed information" and that it "gave scant heed to the public policy which underlies statutes of limitation, to outlaw stale claims". Instead, the court held, there should be a single publication rule, declaring that the statute of limitations begins at the point of publication of an edition (while allowing that republication or publication of a paperback edition may reset the clock); not whenever a new sale is made. This "single publication" rule has since been held to apply to internet publications as well and sets the standard for balancing the interests of protecting reputation on the one hand, and the free flow of information and ideas on the other.
The European Court of Human Rights was invited in a recent case involving The Times to confirm that the UK's multiple publication rule violated the right to freedom of expression. While it declined to provide that ruling, the European court did acknowledge 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".
The multiple publication rule is one of several factors that render UK libel law so plaintiff-friendly and attracts such a number of foreign litigants. It poses real and serious problems for UK publishers – and not just the big national publications, but also small regional and independent publishers – and is badly in need of reform. Last December, the government promised a consultation "as soon as possible in the new year". This promised consultation is yet to materialise. It is not clear what is causing the delay; but as the government dithers, free speech suffers.
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