ECHR finds that Article 10 not breached by the Internet Publication Rule
On 10 March 2009, the ECHR found that the Internet publication rule, whereby a new cause of action arises each time the defamatory material is downloaded from the Internet, does not constitute an unjustifiable and disproportionate restriction on the press’s article 10 right to freedom of expression.
Back in 1999 The Times published two articles which were uploaded onto The Times’ website. Proceedings were brought for defamation and The Times relied on the defence of qualified privilege, contending that the allegations were of such a kind and such seriousness that they had a duty to publish the information and the public had a corresponding right to know. While the action continued, the articles remained on the website. In 2000, the claimant brought a second action for libel in relation to the continuing Internet publication of the articles. The two actions were consolidated.
The defendants sought to amend their defence on the basis that the only actionable publication of an online newspaper article is “that which occurs when the article is first posted on the Internet” (“the single publication rule”). The High Court refused, relying on the rule set out in Duke of Brunswick v Harmer that each publication of a defamation gives rise to a separate cause of action. The court held that, in the context of the Internet, this meant that a new cause of action accrued every time the defamatory material was accessed (“the Internet publication rule”).
The defendants lost at the High Court and the Court of Appeal. The House of Lords refused leave to appeal. The parties then settled the actions.
In the meantime, The Times then made an application to the ECHR on the basis 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’. Article 10 guarantees not only the right to impart information but also the right of the public to receive it. The court acknowledged that ‘in 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 generally.” As such, the court found that the protection afforded by Article 10 was applicable to Internet archives.
The Times argued that the Internet publication rule ‘restricted its ability to maintain a publicly accessible Internet archive’ and stated that the rule would have a ‘chilling effect’ upon freedom of expression as this would ultimately mean they could have ceaseless liability. They relied on the importance of historical records in a democratic society. Although the UK 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, given that archives basically held stale news. Furthermore, the steps required of the applicant to remove the defamatory material from the archives would not be onerous.
The Government highlighted that the competing rights under Articles 6 and 8 should be balanced against the Article 10 right.
The Decision
The Court considered that there was an interference with The Times’ right to freedom of expression which is not permitted unless it is: (i) prescribed by law, (ii) pursues one or more of the legitimate aims set out in Article 10(2) and (iii) necessary in a democratic society to attain such aim or aims.
The Court found no reason to hold that the interference was not lawful. The Internet publication rule was held to be aimed at protecting the rights and reputation of others and therefore the interference was based on a legitimate aim. The Court accepted that the safeguards afforded to the press are particularly important in a democratic society. The Court also accepted that serious scrutiny is required in instances where measures or sanctions imposed on the press are capable of discouraging the press in debates on matters of legitimate public concern and therefore considered that particularly strong reasons would have to be provided to outweigh this effect. The Court found that the press’s primary role was as “public watchdog”, but that it also had a secondary role in providing archives of previous news.
However, the Court found that when exercising its right to freedom of expression, the press must act in good faith and responsibly, as required by Article 10(2). In the present case that Court considered that this was particularly true as it impacted on the rights of private individuals. It added that the duty of the press to ensure accuracy of information will be more significant as regards historical information as there is not the same urgency in publication.
The Court highlighted that The Times failed to add any qualification to the online articles until December 2000. The Court considered that adding a qualification to an archive of which the Times is in control, would not be a disproportionate interference with the right to freedom of expression and would not be an onerous task. The Court dismissed the alleged chilling effect arising out of ceaseless liability.
The Court concluded that the Internet Publication rule was a justified and proportionate restriction on the applicant’s right to freedom of expression.
This ruling should assist those who have been defamed in online articles and blogs. Now that there is no doubt that the Internet publication rule will be enforced by the UK courts, statements are more likely to be withdrawn rapidly or sufficiently qualified by the press in order to avoid being liable for serious damages arising out of archived material which has failed to remove its sting.
