IMPORTANT: This briefing note is only intended as a general statement of the law and no action should be taken in reliance on it without specific legal advice. Release Date: 12 March 2009

Briefings

Times Newspapers Limited (Nos 1 and 2) v United Kingdom
(Application Nos 3002/03 and 23676/03)

The European Court of Human Rights has held that the English ‘internet publication rule’ - that each download of a statement on the internet gives rise to a separate cause of action - is not a disproportionate restriction on the newspapers' right to freedom of expression. 

This is a significant decision for the subjects of internet libels. It confirms that newspapers, blogs and other websites, must continue to act cautiously and responsibly in taking down website content when they have been notified that such content may be subject to a libel challenge.

The Decision of the Court

In December 1999, a Russian businessman brought libel proceedings against The Times in respect of two articles it had published in September and October of that year.  Both articles were published in the newspapers' print edition and on its website.  Whilst the libel action was underway, the two articles remained accessible on The Times website, as part of its news archives. 

In December 2000, the same claimant brought a second libel action in respect of the continuing internet publication of the two articles. The Times argued that only the first publication of an article on the internet should give rise to a cause of action, not subsequent downloads.  As a year had elapsed since the articles were first published online, the newspaper argued that the claimant was time-barred from bringing the second action.

The High Court and the Court of Appeal relied on the internet publication rule in rejecting The Times' defence.  The Times applied to the European Court of Human Rights on the basis that the rule constituted an unjustifiable and disproportionate restriction on its right to freedom of expression. 

At the admissibility stage, the newspaper argued that the Convention right to freedom of expression guaranteed not only the right to impart information but the right of the public to receive it. Accordingly, newspaper archives play a crucial role in enhancing the public's access to news and facilitating the dissemination of information generally.  The Court agreed.

The Times then argued that the internet publication rule restricted its ability to maintain a publically accessible internet archive, which had a "chilling effect" on freedom of expression.  It argued that the integrity and availability of historical records is important in a democratic society. It encouraged the European Court to adopt the rationale of US libel law, where courts have chosen to apply a "single publication rule" - only the first publication counts.

The Government accepted that maintaining archives had a social utility but argued that this was not an aspect of freedom of expectation which was of central or weighty importance, archive material being "stale news".  It pointed out that there was no consistency of approach in other jurisdictions between the single publication rule and the internet publication rule, and argued that the UK's adoption of the latter was a permissible and proportionate restriction on The Times' freedom of expression rights.

The European Court agreed with the UK Government.  It held that the internet publication rule, whilst having the effect of interfering with The Times' freedom of expression rights, served a legitimate aim and was necessary in a democratic society. It held that when exercising its rights to freedom of expression the press must act in a manner which is consistent with its duties and responsibilities. These assume particular significance when, as in the present case, information imparted is likely to have a serious impact on the reputation and rights of private individuals.

Comment

The decision is significant not only for the claimants who find themselves the subject of defamatory newspaper articles, but also those victims of less responsible or regulated on-line media.  Once false or defamatory allegations are published on-line, they may easily be copied, reproduced and morphed. The speed of such re-publishing is often staggering, and the global extent of its reach can increase the damage caused exponentially. Often the task of removing libellous allegations, once they have been relied on and republished across world wide web, is an almost impossible task.

It has long been the practice of responsible newsgroups and website controllers to remove internet content as soon as they are aware that it may be subject to challenge, albeit that this is often on the basis that the removal is without any admission of liability and only whilst they investigate the matter. If the European Court had upheld The Times’ claim, there was a significant risk that this practice would have ceased. This potentially would have increased the exposure of libel claimants to continued public damage and to almost uncontrollable debate about the material about which they complain.

For further information about this case, or related matters, contact Emma Woollcott on +44 (0)20 7440 7415 or by e-mail.

To view the Judgment, please click here.