Memorandum submitted by Times Newspapers Limited

 

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[1] 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[2] 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.

 

April 2009

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[1] Not published

[2] Not published