Written evidence submitted by Times Newspapers
Earlier this year News International submitted
a paper in response to your current inquiry into Press Standards
Privacy and Libel. Part of that submission was "The Interaction
between the operation and effect of UK libel laws and press reporting".
In that part of the paper, we highlighted the fact that Times
Newspapers Limited was challenging the Duke of Brunswick v
Harmer rule in the European Court of Human Rights as a serious
fetter on free speech as articles stored electronically can be
easily accessed and each new hit on an article stored on a database
will give rise to a new cause of action and start the limitation
period running all over again. This means there is no effective
limitation period for any article kept on an electronic database.
Last month, the European Court of Human Rights delivered
its judgment in the case of Times Newspapers Ltd v UK Government.
Unfortunately, on the particular facts of the Loutchansky case,
the ECtHR decided that there was no actual fetter on free speech
in the particular circumstances of the Loutchansky case. The electronic
action had been commenced only a year and a quarter after the
original hard copy article so there was no serious prejudice to
the Defendant in the action being commenced only just outside
the one year limitation period. We were of course disappointed
that the court failed to come to grips with the "multiple
publication" rule as it applies to electronic databases because
of the rule in the Duke of Brunswick case. There is therefore
still no effective limitation period for electronic publications
held on databases.
The ECtHR did, however, concede in paragraph 48 of
its judgment that "the Court would emphasize that 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". In short, had the circumstances
been different in the Loutchansky case and the second action on
the electronic version of the original story been commenced many
years later, then we might have succeeded.
Following the European Court's Judgment, we
have been in communication with Jack Straw. I have also written
an article for a special issue of Index on Censorship, which is
due to be published at end of May. I gather it will include among
other articles a piece by Floyd Abrams looking at UK libel law
from a US perspective. Anyway, I enclose a copy of the article
I have contributed to this special issue which covers the recent
ECtHR decision on a single publication rule.
The important part of my article is highlighted
in red. This suggests a quick and easy solution to the problem
of there being no effective limitation period for archival electronic
copies of newspaper articles. The answer of course must be to
amend section 15 of the Defamation Act 1996 and include in that
a new paragraph under Part II of the Schedule to the Act. This
would basically mean that archival media websites would be protected
under the law of qualified privilege, subject to the newspaper
being ready and willing to publish, "in a suitable manner,
a reasonable letter or statement by way of explanation or contradiction".
This would enable people, who were being dogged by an old article,
which maybe long out of date because facts had changed and time
marched on, to get the article updated and new salient facts put
onto the database alongside the old article. This could be done
by an updating letter or statement by way of explanation or contradiction
being posted alongside the old article or easily linked to it.
Last month, Jack Straw very kindly wrote to
me about online archives and the "multiple publication rule"
and how he is hoping to publish a consultation paper on this in
the near future. I enclose a copy of his letter to me and hope
that the DCMS Committee will be able to make recommendations as
set out in my attached article to the MoJ so that the Civil Law
Reform Bill can include suitable provisions making all electronic
archival copy subject to a qualified privilege defence subject
to a reasonable right of explanation or contradiction.
1 Not printed. Back
Not printed. Back