via Lovells media newsletter:


DEFAMATION
ECHR finds that Internet publication rule does not breach right to freedom of speech
The European Court of Human Rights has given an important ruling on the legality of the "Internet publication rule". Times Newspapers Ltd ("The Times") had published in its newspaper, and uploaded onto its website, two articles suggesting that GL was being investigated over possible involvement in money laundering and had links to the mafia. GL brought proceedings against The Times in relation to the two articles printed in the newspaper. While this libel action was underway, the articles were still accessible via The Times' website as part of its archive. GL bought a second action for libel in relation to the continuing Internet publication of the articles. The Times then added a note to the articles on the Internet archive, to the effect that they were subject to High Court libel litigation between GL and itself and should not be reproduced or relied on without reference to its legal department.

The two actions were consolidated and in the course of the joint action, the High Court confirmed that, in the context of the Internet, a new cause of action accrued every time a defamatory material was accessed via the Internet (the "Internet publication rule"). The Times argued that the Internet publication rule breached its right to freedom of expression under Article 10 European Convention on Human Rights. It contended that the rule exposed newspapers with Internet archives to never-ending liability for re-publication of the defamatory material, which would inevitably have a chilling effect on the willingness of the media to provide Internet archives and would thus limit its freedom of expression.

The argument reached the ECHR, which held (The Times 11 March 2009) that a court's finding that The Times had libelled GL by the continued publication on its Internet site of two articles was not a disproportionate restriction on the newspaper's freedom of expression, as guaranteed by article 10 of the Convention. The ECHR noted, however, that, while individuals who were defamed had to have a real opportunity to defend their reputations, libel proceedings brought against a newspaper after too long a period might well give rise to a disproportionate interference with the freedom of the press under article 10.