Stuart Freen is a JD candidate at Osgoode Hall Law School.
The UK Ministry of Justice recently published a consultation paper entitled "Defamation and the internet: the multiple publication rule". The consultation revisits, as its name would suggest, the multiple publication rule currently in use in the UK in light of the internet and online news archives. Several alternatives are considered, most notably a single publication rule similar to the one used in the United States. The issue boils down to when the limitation period for defamation should begin. Under a single publication rule the limitation period would start when a libellous article was first published, whereas under a multiple publication rule each subsequent publication of an article would create a separate cause of action and reset the limitation timer. Applied to the internet that means that every time a libellous web site is loaded the limitation period is extended, effectively allowing it to go on forever.
The government consultation comes in the wake of a European Court of Human Rights decision earlier this year in which the court declined to strike down the multiple publication rule as a violation of freedom of expression. Opponents of the rule argue it's unfair to publishers because it allows people to bring forth claims for articles which were written way in the past. The rule isn’t new by any means; it goes back to a 19th century case Duke of Brunswick v. Harmer[1] where an agent of the Duke found a libellous article in a 17-year-old back copy of a newspaper article. Yet the problem has been exacerbated by the internet where most newspaper and magazine articles are archived online indefinitely. Ontario and most other common law jurisdictions besides the United States use the multiple publication rule.
Does it make sense to allow claimants to sue for an article which was originally published outside of the limitation period and that only exists as an online archive? On the one hand, the (potentially) libellous material is still out there for people to read and depending on the context of the article it could be just as offensive years later as when it was first published. Furthermore, if a claimant only becomes aware of the offending material through the archive then it may be unfair to not let them make a claim. Under a single publication rule there would also be no incentive for publishers to update archived defamatory material once the limitation period from the original publication had passed.
On the other hand, the multiple publication rule does raise the possibility of indefinite liability for defendants. It may be extremely difficult for defendants to mount an effective defence to defamation years after publication when key records and witnesses are gone. The rule is a disincentive for publishers to archive their materials at all and creates a requirement to constantly maintain web archives.
One solution suggested in the consultation is to extend a qualified privilege to accommodate web archives in certain circumstances. Under this model publishers would not be liable for web archives unless it was shown that they were neglectful in updating an archive when the print version was shown to be defamatory. At the very least publishers would need to put warning notes on defamatory web sites (something to the effect of “the print version of this article was found to be libellous”).
Another option which the report doesn’t seem to consider would be to keep the multiple publication rule but start the limitation period for websites at the time of posting or latest update. The absurdity of the rule applied to the internet is that the timer is reset each time a reader loads a website. So, why not start the clock the last time the author/publisher touches the article? Sites like the wayback machine can provide a history of the internet, chronicling what’s changed over time. Under such a system the onus would be on publishers to keep records of their updates to prove they hadn’t changed anything. This would seem to this blogger to be a feasible solution in the spirit of the defamation law that avoids the pitfalls of the multiple publication rule.
[1] [1849] 14 QB 185