Internet
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. The Limitation Act 1980 18. Section 2 of the Limitation Act 1980 (“the 1980 Act”) sets out a general limitation period of six years in tort actions. Section 4A of the 1980 Act qualifies this limitation period as regards defamation actions and provides as follows: “ The time - limit under section 2 of this Act shall not apply to an action for – (a) libel or slander; or (b) slander of title, slander of goods or other malicious falsehood; but no such action shall be brought after the expiration of one year from the date on which the cause of action accrued .” 19. Section 32A of the 1980 Act provides: “(1) It if appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which – (a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents; and (b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents; the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates. (2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to – (a) the length of, and the reasons for, the delay on the part of the plaintiff; (b) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A – ( i ) the date on which any such facts did become known to him; and (ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and (c) the extent to which, having regard to the delay, relevant evidence is likely – ( i ) to be unavailable; or (ii) to be less cogent than if the action had been brought within the period mentioned in section 4A.” B. The Internet publication rule 20. Duke of Brunswick v. Harmer [1849] 14 QB 154 lays down a common - law rule of some significance. On 19 September 1830 an article was published in the Weekly Dispatch. The limitation period for libel was, at that time, six years. The article defamed the Duke of Brunswick. Seventeen years after its publication an agent of the Duke purchased a back number containing the article from the Weekly Dispatch ’ s office. Another copy was obtained from the British Museum. The Duke sued on those two publications. The defendant contended that the cause of action was time-barred, relying on the original publication date. The court held that the delivery of a copy of the newspaper to the plaintiff ’ s agent constituted a separate publication in respect of which suit could be brought. 21. In Godfrey v. Demon Internet Ltd [2001] QB 201 the respondent brought an action in defamation against the appellants who were Internet service providers. They had received and stored on their news server an article, defamatory of the respondent, which had been posted by an unknown person using another service provider. The judge stated: “In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP [Internet service provider] who accesses the newsgroup containing that posting. Thus every time one of the defendants ’ customers accesses ‘ soc culture thai ’ and sees that posting defamatory of the plaintiff there is a publication to that customer.” C. The defence of qualified privilege 22. The leading case on the defence of qualified privilege is Reynolds v. Times Newspapers Ltd [2001] 2 AC 127. That case established that qualified privilege is an absolute defence to libel proceedings. In the leading judgment before the House of Lords, Lord Nicholls of Birkenhead explained the defence as follows : “ The underlying principle is conventionally stated in words to the effect that there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication. Lord Atkinson ’ s dictum, in Adam v. Ward [1917] A.C. 309, 334, is much quoted: ‘ a privileged occasion is ... an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential ’. ” D. The Code of Practice of the Press Complaints Commission 23. The Press Complaints Commission has adopted a Code of Practice which is regularly reviewed and amended as required. Paragraph 1 of the current Code of Practice reads as follows: 1. Accuracy “ ( i ) The Press must take care not to publish inaccurate, misleading or distorted information, including pictures. ( ii) A significant inaccuracy, misleading statement or distortion once recognised must be corrected, promptly and with due prominence, and – where appropriate – an apology published. ( iii) The Press, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact. ( iv) A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party, unless an agreed settlement states otherwise, or an agreed statement is published.” E. The United States single - publication rule 24. Unlike the United Kingdom, the courts of the United States of America have chosen to apply the “single - publication rule”. In the case of Gregoire v. GP Putnam ’ s Sons (1948) 81 N.E.2d 45, a book originally put on sale in 1941 was still being sold in 1946 following several reprints. The New York Court of Appeals considered the rule in Duke of Brunswick v. Harmer, but concluded that it was formulated “in an era which long antedated the modern process of mass publication” and was therefore not suited to modern conditions. Instead, the court held that the limitation period started to run in 1941, when the book was first put on sale. The court pointed out that : “Under [ the rule in Duke of Brunswick v. Harmer ] the Statute of Limitation would never expire so long as a copy of such book remained in stock and is made by the publisher the subject of a sale or inspection by the public. Such a rule would thwart the purpose of the legislature.” 25. The single - publication rule was subsequently applied to a website publication in Firth v. State of New York (2002) NY int 88. In that case, a report published at a press conference on 16 December 1996 was placed on the Internet the same day. An action was brought over a year later. The New York Court of Appeals held that the limitation period started when the report was first uploaded onto the website and did not begin anew each time the website version of the report was accessed by a user. The court observed that : “The policies impelling the original adoption of the single - publication rule support its application to the posting of ... the report ... on the website ... These policies are even more cogent when considered in connection with the exponential growth of the instantaneous, worldwide ability to communicate through the Internet ... Thus a multiple publication rule would implicate an even greater potential for endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants. Inevitably, there would be a serious inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet which is, of course, its greatest beneficial promise.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 26. The applicant complained that the Internet publication rule constitutes an unjustifiable and disproportionate restriction of its right to freedom of expression as provided in Article 10 of the Convention, which reads, in so far as relevant, as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others .. .” A. Admissibility 27. The Court has consistently emphasised that Article 10 guarantees not only the right to impart information but also the right of the public to receive it (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 59 (b), Series A no. 216, and Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998 ‑ I ). In the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public ’ s access to news and facilitating the dissemination of information in general. The maintenance of Internet archives is a critical aspect of this role and the Court therefore considers that such archives fall within the ambit of the protection afforded by Article 10. 28. The Court concludes that the applicant ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. The merits 1. The parties ’ observations ( a ) The applicant 29. The applicant contended that the Internet publication rule restricted its ability to maintain a publicly accessible Internet archive. It pointed to the “chilling effect” that the rule had upon freedom of expression, which it said was aggravated by the fact that it had not actively sought to disseminate the information contained in its Internet archive. The applicant submitted that Article 10 required the adoption of a single - publication rule. 30. The applicant contested the finding of the Court of Appeal that the maintenance of archives constituted an insignificant aspect of freedom of expression. The applicant pointed to the importance of the integrity and availability of historical records to an open and democratic society. 31. The applicant argued that since the defence of qualified privilege was a complete defence to the libel claim, it was under no obligation to publish a qualification in respect of the relevant articles until the litigation had been resolved. It pointed out that the Code of Practice of the Press Complaints Commission obliged newspapers to post a notice or qualification where a publication had been the subject of a judgment or settlement in favour of the complainant. Any other approach would require a large number of articles to be qualified. Attempts to limit qualification to those articles which were potentially libellous would be difficult: because the libellous nature of a publication may change over time, the applicant would be required to keep the entirety of its Internet archive under review. The applicant pointed out that approximately five hundred items were uploaded onto its Internet archive every day. 32. The applicant argued that it was open to the Court to consider the general principle which arose, notwithstanding the specific facts of the case. Although the applicant accepted that G.L. ’ s rights were also engaged, it considered that a single - publication rule would not constitute an excessive restriction on the right of effective access to the court. ( b ) The Government 33. The Government relied on the conclusions in the domestic proceedings that the journalists had not demonstrated the requisite standard of responsibility in respect of the two articles. They further relied on the fact that no qualification was added to the articles on the applicant ’ s website until 23 December 2000, over twelve months after the original libel proceedings were initiated. 34. Although the Government accepted that maintaining archives had a social utility, they considered that this was not an aspect of the exercise of freedom of expression which was of central or weighty importance, archive material being “stale news”. In the present case, the Government argued that there was no evidence that the applicant had been prevented or deterred from maintaining its online archive. Furthermore, the steps required of the applicant to remove the sting from its archive material were not onerous. 35. As regards the applicant ’ s claim of ceaseless liability, the Government observed that no question of ceaseless liability arose in the present case. The Government pointed out that the second action was contemporaneous with the first action and did not raise stale allegations many years after the event. In any case, even under a single - publication rule, ( i ) the continued publication of articles which the applicant knew to be defamatory, which were not qualified in any way and which were not defended as true would constitute a separate actionable tort under English law; and ( ii ) if accompanied by a statutory discretion along the lines of section 32 A of the Limitation Act 1980, the court may well have exercised that discretion to allow G.L. to bring the second action, having regard to the circumstances. 36. The Government highlighted that the present case also engaged the Article 8 and Article 6 rights of G.L. In the choice between the single - publication rule and the Internet publication rule, these competing interests should be balanced. They pointed to the fact that there was no consistency of approach to this issue in other jurisdictions and concluded that, on the facts of this case, the application of the Internet publication rule was a permissible and proportionate restriction on the applicant ’ s right to freedom of expression and did not violate Article 10 of the Convention. 2. The Court ’ s assessment 37. The Court notes that judgment was entered against the applicants in the second action. Furthermore, the applicant subsequently agreed to pay a sum of money in settlement of G.L. ’ s claims and costs in both actions. The Court therefore considers that the second action constituted an interference with the applicant ’ s right to freedom of expression. Such interference breaches Article 10 unless it was “prescribed by law”, pursued one or more of the legitimate aims referred to in Article 10 § 2 and was “necessary in a democratic society” to attain such aim or aims. ( a ) “ Prescribed by law ” 38. The applicant does not contest the lawfulness of the interference, which derived from the application of the rule set out in Duke of Brunswick v. Harmer and developed in the case of Godfrey v. Demon Internet Ltd. The Court sees no reason to hold that the interference was not lawful and therefore concludes that the interference with the applicant ’ s right to freedom of expression was “prescribed by law” within the meaning of Article 10 § 2. ( b ) Legitimate aim 39. The Internet publication rule is aimed at protecting the rights and reputation of others. It has not been disputed, and the Court also agrees, that the interference has a legitimate aim. ( c ) “ Necessary in a democratic society ” ( i ) General principles 40. The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and in that context the safeguards guaranteed to the press are particularly important. While the press must not overstep the boundaries set, inter alia, in the interest of “the protection of the reputation or rights of others”, it is nevertheless incumbent on it to impart information and ideas of public interest. Not only does the press have the task of imparting such information and ideas, but the public also has a right to receive them. In this way, the press fulfils its vital role as a “public watchdog” ( see Observer and Guardian, cited above, § 59 ). 41. The Court observes that the most careful of scrutiny under Article 10 is required where measures or sanctions imposed on the press are capable of discouraging the participation of the press in debates on matters of legitimate public concern ( see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 64, ECHR 1999 ‑ III ). The Court further notes that particularly strong reasons must be provided for any measure limiting access to information which the public has the right to receive (see Timpul Info- Magazin and Anghel v. Moldova, no. 42864/05, § 31, 27 November 2007 ). 42. However, the Court reiterates that Article 10 does not guarantee a wholly unrestricted freedom of expression to the press, even with respect to press coverage of matters of serious public concern. When exercising its right to freedom of expression, the press must act in a manner consistent with its duties and responsibilities, as required by Article 10 § 2. These duties and responsibilities assume particular significance when, as in the present case, information imparted by the press is likely to have a serious impact on the reputation and rights of private individuals. Furthermore, the protection afforded by Article 10 to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with responsible journalism ( see Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I, and Bladet Tromsø and Stensaas, cited above, § 65 ). 43. Finally, it should be recalled that in assessing whether the interference was justified, it is not the role of the Court to substitute its views for those of the national authorities but to review the case as a whole, in the light of Article 10, and consider whether the decision taken by the national authorities fell within the margin of appreciation allowed to the member States in this area ( see Handyside v. the United Kingdom, 7 December 1976, § 50, Series A no. 24 ). ( ii ) Application of the above principles to the present case 44. The applicants maintain that they are exposed to litigation, without limit in time, on account of the adoption of the Internet publication rule instead of the single - publication rule. 45. The Court agrees at the outset with the applicant ’ s submissions as to the substantial contribution made by Internet archives to preserving and making available news and information. Such archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free. The Court therefore considers that, while the primary function of the press in a democracy is to act as a “public watchdog”, it has a valuable secondary role in maintaining and making available to the public archives containing news which has previously been reported. However, the margin of appreciation afforded to States in striking the balance between the competing rights is likely to be greater where news archives of past events, rather than news reporting of current affairs, are concerned. In particular, the duty of the press to act in accordance with the principles of responsible journalism by ensuring the accuracy of historical, rather than perishable, information published is likely to be more stringent in the absence of any urgency in publishing the material. 46. The Court further observes that the introduction of limitation periods for libel actions is intended to ensure that those who are defamed move quickly to protect their reputations in order that newspapers sued for libel are able to defend claims unhindered by the passage of time and the loss of notes and fading of memories that such passage of time inevitably entails. In determining the length of any limitation period, the protection of the right to freedom of expression enjoyed by the press should be balanced against the rights of individuals to protect their reputations and, where necessary, to have access to a court in order to do so. It is, in principle, for contracting States, in the exercise of their margin of appreciation, to set a limitation period which is appropriate and to provide for any cases in which an exception to the prescribed limitation period may be permitted (see Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 54-55, Reports 1996 ‑ IV ). 47. On the facts of the present case, the Court considers it significant that, although libel proceedings in respect of the two articles were initiated in December 1999, the applicant did not add any qualification to the articles in its Internet archive until December 2000. The Court notes the conclusion of the Court of Appeal that the attachment of a notice to archive copies of material which it is known may be defamatory would “normally remove any sting from the material”. To the extent that the applicant maintains that such an obligation is excessive, the Court observes that the Internet archive in question is managed by the applicant itself. It is also noteworthy that the Court of Appeal did not suggest that potentially defamatory articles should be removed from archives altogether. In the circumstances, the Court, like the Court of Appeal, does not consider that the requirement to publish an appropriate qualification to an article contained in an Internet archive, where it has been brought to the notice of a newspaper that a libel action has been initiated in respect of that same article published in the written press, constitutes a disproportionate interference with the right to freedom of expression. The Court further notes that the brief notice which was eventually attached to the archive would appear to undermine the applicant ’ s argument that any qualification would be difficult to formulate. 48. Having regard to this conclusion, it is not necessary for the Court to consider in detail the broader chilling effect allegedly created by the application of the Internet publication rule in the present case. The Court nonetheless observes that the two libel actions brought against the applicant concerned the same two articles. The first action was brought some two to three months after the publication of the articles and well within the one - year limitation period. The second action was brought a year later, some fourteen or fifteen months after the initial publication of the articles. At the time the second action was brought, the legal proceedings in respect of the first action were still under way. There is no suggestion that the applicant was prejudiced in mounting its defence to the libel proceedings in respect of the Internet publication due to the passage of time. In these circumstances, the problems linked to ceaseless liability for libel do not arise. The Court would, however, emphasise 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. 49. The foregoing considerations are sufficient to enable the Court to conclude that in the present case, the finding by the domestic courts in the second action that the applicant had libelled the claimant by the continued publication on the Internet of the two articles was a justified and proportionate restriction on the applicant ’ s right to freedom of expression. 50. There has accordingly been no violation of Article 10 of the Convention.
In this judgment the Court underlined that, in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public’s access to news and facilitating the dissemination of information in general. In the present case, it found that there had been no violation of Article 10 (freedom of expression) of the Convention: 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 had not been disproportionate.