Internet Archives Exposed to Liability without Limit in Time?
ECtHR 10 maart 2009 (Times Newspapers/United
Kingdom)
Russian Businessman Accused
In September and October of 1999 The Times published two articles
concerning the Russian businessman Grigori Loutchansky. He and his
company Nordex were accused of being associated with the Russian
mafia and being active in large-scale money-laundering and the
smuggling of nuclear weapons.
In December 1999 Loutchansky brought proceedings for libel against
The Times. While this action was underway, the articles remained
accessible to Internet users on the newspapers' website as part
of the archive of past issues. In December 2000 Loutchansky brought
a second action for libel in relation to the continuing Internet
publication of the articles.
The Times did not dispute that the publications were potentially
defamatory and did not seek to prove that the allegations were
true. It relied on the absolute defence of 'qualified
privilege', contending that the allegations were of such a kind
and seriousness that the newspaper had a duty to publish the
information and the public had a corresponding need to know.
This defence was unsuccessful.
Internet publication rule
In the UK as regards defamation actions a
limitation period of one year exists as of the date on which the
cause of action accrued. The Times argued that since Loutchansky
brought his second action over a year after the initial publication
of the articles, this action was time-barred. Crucial for this
defence is the answer to the question of when the limitation period
starts. Is this as of the dates the articles were printed in the
newspaper and were first uploaded onto the website, or does the
period start anew every time the articles are accessed on the
internet?
In the case Duke of Brunswick v Harmer of 1849 the court held
that the delivery of a copy of the newspaper to the Duke's
agent seventeen years after its publication constituted a separate
publication in respect of which suit could be brought. In 1941 the
New York Court of Appeal concluded that the rule was formulated
"in an era which long antedated the modern process of mass
publication" and was not suited to modern conditions any
longer. The US courts have chosen to apply the 'single
publication rule', the limitation period starting as of the
date of the first publication.
However, the UK courts have stayed true to Duke of Brunswick v
Harmer and apply the 'Internet publication rule', meaning
that a new cause of action accrues every time the publication is
accessed. Consequently, the court rejected the defence of The Times
that the second action was time-barred.
Freedom of Expression and the Importance of Online
Archives
The Times then filed a complaint against the United
Kingdom with the European Court of Human Rights concerning the
'Internet publication rule'. It argued that the rule
breaches Article 10 ECHR containing the right to freedom of
expression, since the result is that newspapers that maintain
Internet archives are exposed to ceaseless liability for
re-publication of the defamatory material. The Times pointed out
that the rule inevitably has a chilling effect on the willingness
of newspapers to provide Internet archives and thus limits their
freedom of expression.
Unlike the UK Court of Appeal that considered the maintenance of
archives 'a comparatively insignificant aspect of freedom of
expression', the European Court of Human Rights agrees with The
Times that Internet archives make a substantial contribution to
preserving and making available news and information. While the
primary function of the press in a democracy is to act as a
"public watchdog", the Court considers that the press has
a valuable secondary role in maintaining and making available to
the public archives containing news which has previously been
reported.
Unfortunately for The Times the Court does not give decision of
principle on the Internet publication rule. The Court finds that
The Times was not prejudiced in its defence due to the passage of
time and no problems linked to ceaseless liability had arisen.
However, some comfort may be found in the Court's statement
that libel proceedings brought against a newspaper after a
significant lapse of time may well give rise to a disproportionate
interference with press freedom under Article 10.
This consideration is interesting for the Dutch practice, since
there is no special limitation period for defamation cases. In
general the limitation period for claiming damages is five years.
However, it could be that before these five years have passed the
lapse of time is yet significant enough 'to give rise to a
disproportionate interference with press freedom under Article
10'.
Adding qualification "subject to litigation"
Lastly, the UK Courts expected The Times, as of the
start of the proceedings, to add a qualification to both articles
in the Internet archive that these were subject to litigation. The
Times complained about this obligation, but the European Court of
Human Rights does not consider the requirement excessive and
concludes that it does not constitute a disproportionate
interference with the right to freedom of expression.