Information Note on the Court’s case-law No. 117
March 2009
Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2) - 3002/03 and 23676/03
Judgment 10.3.2009 [Section IV]
Article 10
Article 10-1
Freedom of expression
Rule that new cause of action accrues every time defamatory material on the Internet is accessed: no violation
Facts: This case concerned the application, in the context of the Internet, of the common-law rule that successive publications of a defamatory statement give rise to separate causes of action.
In December 1999 the applicant newspaper published two articles that were allegedly defamatory of a private individual, G.L. Both articles were uploaded onto the newspaper’s website. G.L. brought proceedings for libel against the newspaper, its editor and the two journalists who had written the articles. In their defence, the defendants pleaded qualified privilege on the grounds that the allegations were of such a kind and seriousness that they had a duty to publish and the public a corresponding right to know. While the first libel action was under way, the articles remained accessible on the newspaper’s website, as part of its archive of past issues. In December 2000 G.L. brought a second action for libel in relation to the continuing Internet publication of the archives. Following this, the newspaper added a notice to the Internet archives announcing that both articles were subject to libel litigation and were not to be reproduced or relied on without reference to its legal department. In its defence to the second action, it argued in favour of a single-publication rule, such that only the first publication of an article posted on the Internet could give rise to a cause of action in defamation and not any subsequent downloads by Internet readers. However, applying the rule established in Duke of Brunswick v. Harmer [1849] 14 QB 154 that successive publications of a defamatory statement give rise to separate causes of action, the High Court held that a new cause of action accrued every time the defamatory material was accessed (“the Internet publication rule”). The Court of Appeal upheld that decision after noting that the maintenance of archives was a relatively insignificant aspect of freedom of expression, and that it would have been advisable to attach a notice warning readers against treating the archive material as the truth as soon as it was known that it might be defamatory.
Law: The case essentially turned on whether the application of the Internet publication rule was “necessary in a democratic society”. The Court accepted that Internet archives were an important source for education and historical research, but noted that the States’ margin of appreciation was likely to be greater where archives, rather than current affairs, were concerned and that the duty of the press to ensure accuracy was likely to be more stringent in respect of such information. In the instant case, it was significant that although libel proceedings had been commenced in respect of the two articles in question in December 1999, no qualification had been added to the archived copies until December 2000. Since the archives were managed by the newspaper itself and the domestic courts had not suggested that the articles be removed altogether, the requirement to add an appropriate qualification to the Internet version was not disproportionate.
While, in view of that conclusion, the Court did not consider it necessary to consider the broader chilling effect allegedly created by the Internet publication rule, it nonetheless addressed the issue of limitation periods in libel proceedings and the newspaper’s allegation that the rule gave rise to ceaseless liability. It observed that, on the facts of the instant case, the newspaper had not been prejudiced by the passage of time in mounting its defence as the two libel actions related to the same articles and had both been commenced within 15 months of the initial publication. However, where libel proceedings were brought after a significant lapse of time, they might well, in the absence of exceptional circumstances, give rise to a disproportionate interference with the freedom of the press under Article 10.
Conclusion: no violation (unanimously).
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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