Response to the Ministry of Justice Consultation on
Defamation on the Internet: the Multiple Publication Rule
(Consultation Paper CP20/09)
Charlie Beckett, Director, POLIS.
Andrew Murray, Reader in Law, Department of Law.
Andrew Scott, Senior Lecturer in Law, Department of Law.
November 2009
About The Respondents
The London School of Economics and Political Science is one of the UK’s leading universities. It is a
world-renowned, specialist, social science institution which makes frequent contribution to policy
and society.
Since the foundation of the LSE, the study of law has been an integral part of the School's mission.
The Department of Law is one of the largest in the School. Its special place in a school of social
sciences has given legal studies in the Department a distinctive, interdisciplinary character. The
Department has played a major role in policy debates and policy-making, and in the education of
lawyers and law teachers from around the world. It enjoys a uniquely cosmopolitan student body,
and has deeply influenced legal education in most common law countries. The Department was
ranked first among UK law departments in the most recent government research assessment
exercise.
POLIS is the journalism think-tank within the Media and Communications Department at LSE. It is a
forum for debate about journalism and society and a centre for research and teaching on
contemporary UK and international news media. Over the past 24 months, it has conducted a series
of seminars with media and legal practitioners on media law issues. These were led by Dr Andrew
Scott of the Department of Law, and included high-level workshops on ‘libel-tourism’ and on
contempt of court and media publicity.
POLIS Director Charlie Beckett is an award-winning journalist who worked at the BBC and ITN’s
Channel 4 News before founding POLIS in 2006. He is a regular commentator, writer and researcher
on journalism, and the author of SuperMedia: Saving Journalism So IT Can Save The World (Blackwell
2008). He is a trustee of the Media Society, Article 19 and the Institute of Development Studies.
Andrew Murray is a Reader in Law. He is a Fellow of Gray’s Inn, and is Legal Project Lead of Creative
Commons England & Wales. He specialises in Cyber-regulation and Governance and New Media &
Communications Regulation. Andrew advises on e-commerce and Web 2.0 projects and has
contributed to the New Oxford Companion to Law and the International Encyclopaedia of
Communication. Andrew is author of The Regulation of Cyberspace: Control in the Online
Environment (Routledge-Cavendish, 2007), and co-editor of Human Rights in the Digital Age
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(Glasshouse Press, 2006). His new book Information Technology Law: The Law and Society will be
published by Oxford University Press in summer 2010.
Andrew Scott is a Senior Lecturer in Law, specialising in media law and regulation and in competition
law. He has published widely on these themes, most recently contributing several chapters to the
forthcoming edition of Carter-Ruck on Defamation and Privacy (Butterworths/LexisNexis). He has
advised the Select Committee on Culture, Media and Sport on aspects of defamation law, the Irish
Competition Authority on media plurality, and the BBC Trust on competition law in the media sector.
Contact
Charlie Beckett
POLIS
c.h.beckett@lse.ac.uk
Tel: 0780 878 6573
Andrew Murray
Department of Law
Email: a.murray@lse.ac.uk
Tel: 020 7849 4645
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Andrew Scott
Department of Law
Email: a.d.scott@lse.ac.uk
Tel: 020 7955 7259
Response to Consultation
1. The emergence of new media platforms and technologies has caused a paradigm shift in the
publishing industries and communications more widely.1 Importantly, extant laws governing the
public sphere may have become outmoded as one consequence of this development. As one
illustration, we recognise fully the emergence of heightened legal risk attendant on the
operation of the Duke of Brunswick / ‘multiple publication’ rule in the context of the maintaining
of online archives of earlier publications. We agree that such archives are socially desirable, and
that the degree of perpetuating legal risk faced is therefore inappropriate. So much has been
exemplified in the actions fought by Times Newspapers Ltd before the domestic and
international courts,2 and discussed with clarity and concision in the Ministry of Justice
consultation paper.
2. We understand the emphasis placed on the introduction of a ‘single publication rule’ as a means
of addressing this problem. For the reasons developed briefly below, however, we would not
support such a move. That said, we consider that an almost equally simple and efficacious
alternative solution is available. This solution is not dissimilar to the qualified privilege option
mooted in the consultation paper, although it would be somewhat more broad-based in
application.
3. It is our view that the conception of the problem at hand – the legal risk faced by ‘traditional’
media companies in their maintaining of easily accessed archives following their move online should be expanded in two important ways.3
4. First, it must be recognised that online archives are maintained by a broad array of persons in
the online environment. The legal risk faced extends far beyond the maintaining of digital
archives by traditional media companies. Legacy material produced by individual authors and
others will often remain publicly available indefinitely on blogs, in search engine caches, and
1
Whereas traditional publication methods saw the production of a ‘print’ or ‘print run’ for future distribution
by intermediary suppliers, online publication is to be conceived as an ‘on demand’ form of publication where
the consumer requests a unique publication in the form of a webpage.
2
Respectively, Loutchansky v Times Newspapers Ltd [2001] EWCA Civ 1805, and Times Newspapers Ltd (Nos 1
and 2) v. United Kingdom (nos. 3002/03 and 23676/03).
3
We do not seek here to address a further issue concerning the application of libel law in the online context,
viz that of jurisdiction and so-called ‘libel-tourism’. That said, in the first instance we view this issue as being
one for the courts to address. We note that recent decisions, such as Dow Jones, Inc v Jameel [2005] EWCA Civ
75 and Al Amoudi v Brisard & Anr [2007] 1 WLR 113 suggest that a balance is being struck.
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elsewhere in the online environment. While certainly not often as prominent as the archives of
mainstream media companies, the utility of search engines such as Google entails that this
material can be readily accessed by all those interested in researching a given topic or individual.
Given the present state of the law, such authors and their hosts are equally susceptible to legal
action on an ongoing basis. Any change in the law must take account of the fact that not all of
those who maintain online archives are as deserving of protection as Times Newspapers or other
public-spirited media businesses. Moreover, even angels sometimes sup with the devil.
5. A second – although distinct - extension of the conceptualisation of the problems engendered by
online publication is arguably necessary so as to devise appropriate legal protections for the
divers authors of online content. The nature of the internet is such that material uploaded by
one author can be linked, pasted, adopted, replicated and mashed by others. Indeed, this is a
desirable feature of ‘networked journalism’.4 There is a risk, however, that particular authors can
lose any control over how their contributions to the public sphere are subsequently used or
where they are located on the web.
6. A fair response to this ‘viralling’ of defamatory comment would be to assert that the author
should have contemplated what the ramifications of making the statement online might be.
There are two scenarios, however, in which such an approach may be inequitable. In the first
case, material may be transposed from one online location to another and in the process the
qualifying ‘informational context’ in which material is first made available may be lost. In a
second scenario, an apology, correction or retraction issued on the author’s primary publication
platform in response to an approach by a disgruntled claimant may not replicated elsewhere
across the web. The original author does not retain editorial control in either instance. In the
first scenario, existing rules of attribution would almost certainly intervene to protect the
original author. Under existing law, this would not be the case in the second scenario. It would
seem harsh to attach liability to the original author for continuing online defamation in such
circumstances.
7. In addition, we do not believe that reforms focused on a simple move to a single publication rule
to address the risks faced by online archivists would take sufficient account of the need also to
4
This is the idea that traditional journalism opens itself to newsgathering, production and publication inputs
from informed and active non-professional journalists / informed citizens / practicing experts / individuals
serendipitously at the site of some developing story and so on, so that there develops a layered appreciation
of the ‘full story’ on any given issue – see Beckett (2008) SuperMedia: Saving Journalism So IT Can Save The
World (Blackwell 2008).
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defend the practice and potentiality of networked journalism that has been facilitated by online
digital technologies. This concern is exemplified in the second of the two scenarios outlined in
the paragraphs above, where a correction of a defamatory statement is made on the site
controlled by an original author but is not then replicated elsewhere.
8. In light of the above, we propose an alternative solution to the single publication rule, but one
which adequately reflects both the need to address the legal risk faced by persons maintaining
online archives given the social value attaching to such archives, and the importance of
facilitating and not deterring networked journalism. This would be a new defence of ‘nonculpable republication’ that would be available in two prescribed circumstances.
Rejection of move to a ‘single publication rule’
9. Our reservation concerning a move to a single publication rule for online archive publication is
bipartite. Primarily, we consider that a single publication rule (even with an extended limitation
period) would not always allow for an appropriate balance to be struck between Article 10 rights
to communicative freedom and competing rights to privacy and reputation. As recognised in
paragraph 12 of the consultation document, this potential conflict of rights lies at the heart of
the problem highlighted in the Loutchansky litigation. In attempting to resolve the problems, the
personal and social importance of the interests of prospective claimants must not inadvertently
be underplayed.
10. A single publication rule would automatically absolve both the author and the host of an
impugned archive statement of any responsibility for its making after the requisite limitation
period following first publication. We do not consider that this is appropriate. Not every author
of a defamatory statement – or every archivist of online content - is deserving of exoneration
from liability. In the online environment, the availability of past statements can continue to be
horrendously damaging. For instance, we are aware of a case in which a series of false and
malicious allegations were made on a dedicated offshore website by a disaffected former
associate regarding the various members of a family. These allegations included false
imputations of paedophilia. The ramifications for one family member of the repeated accessing
of this content over a prolonged period by means of search engine was that he became
effectively unemployable.
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11. At whatever remove it is made from the first uploading of the impugned statement, each
republication has the potential to harm the reputation of the person defamed. The speaker /
publisher of words that wound is responsible for his or her actions. When a defamatory
statement is made, it has the potential to harm the person to whom it refers. This is true of the
first and of the twentieth time the statement is made. Where no defence is available, the
question of degree of harm may be dealt with as a question of quantum of damages.
12. We note that it can be argued that each subsequent republication may not be of equal quantum
of harm to the original, with the implication that the additional harm done would always
minimise over time. As Lord Phillips of Worth Matravers MR noted in Loutchansky: ‘the scale of
such publication and any resulting damage is likely to be modest compared with that of the
original publication’.5 This need not be, however, necessarily the case. Indeed, secondary
publication after the elapse of time may arguably, perhaps counter-intuitively, be more
damaging than much initial publication. As only those with a particular interest in a subject or
individual will be motivated to access the material at the later point in time, any impact on
reputation may be especially poignant. In terms of damage to reputation, what often matters is
who is reading material at a given time. As noted by Mr Justice Eady in Mardas, “whether there
has been a real and substantial tort… cannot depend [solely] upon a numbers game”.6
13. In addition to this main concern, in our view rules that are intended to apply to particular
technological platforms only are usually poorly designed, and prone to developments in
technology. The Commission of the European Union, for example, has been criticised as being
techno-deterministic in its Information Society programme, in particular with regard to the
design of the e-Money Directive (Dir.2000/46/EC – now repealed) and the Electronic Signatures
Directive (Dir.1999/93/EC). It is important that any change made to the law of defamation as a
result of this consultation is designed to benefit defamation law across all platforms and is not
structured to meet the challenge of a single publication platform.
An alternative defence: ‘non-culpable republication’
14. We consider that the Defamation Act 1996 requires amendment to prevent Loutchansky-style
litigation from exercising a chilling effect on the maintaining of online archives, and to defend
the practice of networked journalism. At first take, we are attracted to the alternative solution
5
6
[2001] EWCA Civ 1805, para 75.
Mardas v New York Times Company [2008] EWHC 3135 (QB), para 15.
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mooted in paragraphs 25-29 of the discussion paper: that of retention of the multiple
publication rule, coupled with the introduction of an extended version of statutory qualified
privilege.
15. On examination, however, we consider that there are limitations of such an approach. First,
conceptually, it is demonstrably in the public interest for the types of information currently
covered by statutory qualified privilege to be communicated to a wide audience. The same may
not be true of the content of archived statements. These may include information that is of the
public interest, but equally such information may be anodyne and unimportant. To the extent
that there exists a public interest in this context, this pertains without qualification only to the
continuing availability of the archive. We consider that the analogy with the existing applications
of the statutory qualified privilege defence is somewhat misconceived.
16. Secondly, we note that the qualified privilege defence can be over-ridden when the claimant can
demonstrate that publication is made with ‘malice’. Malice is understood to mean either that
the publisher does not hold a positive belief in the truth of the statement or is reckless as to its
truth.7 In the context of a continuing multiple publication rule, the adoption of a qualified
privilege approach would require the continual policing of the archive to ensure that statements
made therein accorded with the present state of knowledge as to their accuracy. If the publisher
learns today – perhaps through further journalistic investigation - that an archived story is not
true and yet does not correct this, then he or she would henceforth become liable for harms to
reputation. Thirdly, the qualified privilege approach does not take account of the position of the
author who may be liable for the reiteration of his statements elsewhere on the internet.
Therefore, it does not address the potential impact of existing laws of libel on networked
journalism.
17. Consequently, we propose instead retention of the multiple publication rule and the
introduction of a new defence of ‘non-culpable republication’. This defence would be available
to protect both the online archivist and the author who has ‘lost control’ of transposed or
viralled statements. It could be introduced by way of amendment of the Defamation Act 1996. A
variant of the defence could also be made available to persons maintaining hard copy archives.
Although manifestly different in terms of the persons to whom it would be available and the
7
Horrocks v Lowe [1975] AC 135, 149 (per Lord Diplock).
8
requirements that it would impose, the proposed new defence has some affinity with the
existing statutory defence of ‘innocent dissemination’ in its focus on relative culpability.8
18. The non-culpable republication defence would be available to an archivist after the elapse of
one year after the initial publication of the story in question. To avail of the defence, the
archivist would be required to append a notice to the archived online article (or, perhaps, in the
case of a hard-copy archive to a register of notices relating to archived articles). We would
suggest that such a notice should indicate that a challenge to the accuracy of the original story
had been made under the new statutory defence.9 Should the publisher in fact be persuaded of
the inaccuracy of the original article on the approach of the prospective claimant, he or she may
choose instead to amend the archived article or to attach a correcting notice. Importantly, the
archivist-publisher could choose not to append a notice on request of a prospective claimant.
This would allow him or her to assert the accuracy of the original piece, and to retain the option
of fighting an action where it was deemed desirable or necessary to do so. Presumably this
would happen only where the archivist-publisher fully believed themselves able to rebut a libel
claim.
19. The advantages of this approach in the context of archiving are numerous. The integrity of the
archive as a facet of the historical record is maintained, while future users of the archive are left
in no doubt that further investigation is necessary before statements made therein can be
simply adopted. The force of the alleged libel would thereby be mitigated. Moreover, any
inclusion in the notice of the competing perspective of the person whose reputation had been
impugned would often add to the discursive value of the original piece.
20. The approach recognises, following the European Court of Human Rights in Times Newspapers,
that online publication is uniquely plastic in the sense that amendments and notifications can be
easily added to archived web content. While there may be a risk that requests for the appending
of notices would be made willy-nilly following the expiry of the one year period, it would remain
open to the archivist to refuse, and thereby to assert the continuing validity of the original
article. In such circumstances, it would remain open to the aggrieved party to sue. No such
option would be available to a claimant, however, where - after the appending of a notice - it
8
s.1, Defamation Act 1996.
By way of a specimen, we might suggest the following: “A challenge to the accuracy of the following article
has been made by [X] under section [x] of the Defamation Act 1996. Specifically, it is asserted that [1, 2 and 3].
To preserve the integrity of the original article no direct amendment thereto has been made. ”
9
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was believed that the archivist-publisher no longer believed in the accuracy of the statement.
Hence, the issue of malice / honest belief would not factor in the assessment, and there would
be no obligation continually to review the accuracy of statements made in the archive against
the current state of knowledge.
21. As regards the author who has lost control of his or her online publication, a variant of the
defence of non-culpable republication should be made available where the author publishes an
appropriate retraction / correction / apology on the original site(s) under his or her control, and
then makes best efforts to inform readers and other publishers of this development.10
Henceforth, the original author would be liable only for the harm caused by his or her own
publication to the point when the amendment was made. Subsequent publishers would
themselves continue to attract liability for uncorrected republication.
22. Whether the defence should be available in this context only after a period of one year has
expired following initial publication is an open question. On one hand, a retraction / apology /
correction may be made very shortly after the original, impugned statement is posted, and it
may be harsh to impose liability for additional publication by others for some time thereafter. A
one-year requirement would not seem to be motivated by the conception of the problem in this
context. On the other hand, it is arguable that such authors can be reasonably expected to
understand the potential ramifications of their statements in the online environment, and that
they should not be too lightly absolved of their obligation to behave responsibly. Indeed, too
generous a rule may stand as an open invitation to deliberate circumvention. On balance, we
would favour the defence being made available from the point in time when correction has been
made and best efforts undertaken to address the republication problem.
10
‘Best efforts’ in this context might involve undertaking a periodic web-search using keywords pertinent to
the impugned article, and then informing the publishers / hosts of the identified sites of the corrections made
to the original publication.
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Responses to Questions
Question 1. Taking into account the arguments set out above, do you consider in principle that the
multiple publication rule should be retained? If not, should a single publication rule be introduced?
Please give reasons for your answers.
We consider that the multiple publication rule (MPR) should be retained, but that a new defence –
that of ‘non-culpable republication’ - should be introduced by means of legislation.
The adoption of a single publication rule (SPR) would potentially leave a claimant in a position where
he or she was unable to respond to a damaging republication of a tortious statement following the
expiration of the limitation period.
That said, it is clear the MPR is causing inequity in the digital publishing environment.
These conclusions are explained in the foregoing note.
Question 2. If the multiple publication rule were to be retained should there be an obligation to place
a notice on an archive once the person responsible has been notified that the material is subject to
defamation proceedings?
We consider that the process of attaching a notice to an impugned statement in an online archive
(or in a register of notices relating to a hard-copy archive) would not be an unduly onerous
requirement to place on the publisher of a statement when weighed against the potential harm
caused. In terms of the legal treatment of this issue, however, we would wish to differentiate
between two scenarios.
First, following a period of one year after the first publication of the story in question, we suggest
that the appending of a suitable notice should allow an archivist-publisher to avail of a new defence
of non-culpable publication (as developed in paragraphs 14-22 of the foregoing note).
In the second case, where proceedings are initiated prior to the expiry of this one year period, we
are ambivalent as to whether there should be any requirement placed upon archivists to append a
notice. We would consider it good practice for a notice to be appended to the archived story, and
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note that this would involve a straight-forward procedure. For online archives, a simple link to
details of the litigation or court order may be easily supplied. The costs of amending the archive
would have to be borne by the archivist-publisher, but as he or she would be in a position to
ameliorate the harm this does not seem unreasonable. It may be compared with the costs of
meeting general duties of care owed in product liability cases. The placing of a notice on archive
material does not alter the content of the archive, while it may mitigate extensively against further
harm.
The publisher may consider, however, that he or she wishes to allow no inference of inaccuracy to
be drawn by its readers. We understand that publishers and archivists may be concerned that the
appending of such notices may undermine the nature of the archive as an exact record of events to
be used in future consultation by historians and other parties with an interest in the exact record.
Ultimately, given that in this scenario a court will be apprised of the issue, one would assume that
the failure or otherwise of the archivist-publisher to append a notice would speak to the matter of
the extent of harms caused, and hence to the measure of damages on any adverse finding. We
would be content to leave this decision to the archivist-publisher in question.
Question 3. Do you agree that if a single publication rule were to be introduced, it should apply to all
defamation proceedings, not just those relating to online publications?
We do not agree that an SPR should be introduced. If such a rule was introduced, however, we
consider that it should apply to all publication platforms. It would be wrong to treat different forms
of publication differently.
Question 4. If a single publication rule were introduced,
a) should it be made obligatory to remove or amend material held in other formats under the control
of the same publisher in the event of a successful defamation action against the original publication
of the material?
b) should there be a provision that, where defamatory material is re-transmitted in a new format, the
single publication rule would only protect the previous publisher and not the publisher of the new
article?
c) if neither of these are considered appropriate, how could claimants’ interests be protected?
d) should the existing ‘voluntary’ obligations to correct inaccurate and misleading material be
strengthened? If so, how should this be done?
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Please give reasons for your answers.
We do not comment. We do not consider that an SPR should be introduced.
Question 5.
a) If a single publication rule were introduced, do you consider that the approach taken in the United
States in respect of what constitutes a new publication of hard copy material would be workable? If
not, what changes should be made?
b) Should online content that has been modified be regarded as a new publication?
c) Are there any other issues that would need to be resolved in establishing a single publication rule?
Please give reasons for your answers.
We do not comment. We do not consider that an SPR should be introduced.
Question 6. As an alternative to introducing a single publication rule, do you consider that the
Defamation Act 1996 should be amended to extend the defence of qualified privilege to publications
on online archives outside the one year limitation period for the initial publication, unless the
publisher refuses or neglects to update the electronic version, on request, with a reasonable letter or
statement by the claimant by way of explanation or contradiction? Please give reasons for your
answer.
We consider that retention of the MPR, in conjunction with the introduction of an appropriate
defence to cover the publication of archive material online, is the appropriate way forward. We do
not consider, however, that an extension of the existing statutory qualified privilege is the best
means of resolving the perceived problem. We propose instead a new statutory defence of ‘nonculpable republication’.
We also suggest that a variant of this defence might be made available - upon satisfaction of certain
conditions - to the online author who has ‘lost control’ of an online statement following the
transposition of this statement by others.
These conclusions are explained in the foregoing note.
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Question 7. Do you agree that if the multiple publication rule is retained, the limitation period should
remain at one year from the date of publication (with discretion to extend)? If not, what limitation
period would be appropriate and why?
We consider that the one year limitation period should be retained.
Question 8.
a) If a single publication rule were introduced, should the limitation period of one year run from the
date of publication (with discretion to extend) or the date of knowledge (without discretion to
extend)? If the latter, should there also be a ten year long-stop from the date of publication?
b) If you consider that an alternative approach would be appropriate, what should this be and why?
We do not comment. We do not consider that an SPR should be introduced.
Charlie Beckett, Andrew Murray, Andrew Scott
7 December 2009.
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