Online defamation – single or multiple publication rule?

1. Online defamation – single or multiple publication rule? Prof Sanette Nel University of South Africa

2. Introduction ▪ 1830 Duke of Brunswick -- Weekly Dispatch newspaper ▪ PROBLEM 2009 in Internet Age Can businessman sue the newspaper more than once? If so, how many times?

3. Defamation • Defamation occurs when a person intentionally communicates material to a third party, • in words or any other form, • containing an untrue allegation • against the reputation of the claimant. • Includes Libel (written) & slander (oral)

4. Elements of defamation: • Act(publication of words/behaviour) • Wrongfulness(infringement of a person’s right to a good name/reputation) • Injury to personality (defamatory effect of the words/behaviour) • Intention(animus iniuriandi with exception of negligence in case of media) • Causal connectionbetween the act and the injury to personality

5. Defences • The defendant can rely on defences such as: • Truth and in the public interest • Fair comment • Absolute privilege • Qualified privilege • Media privilege (reasonable) Secondary publishers

6. Publication • Every individual publication of defamation gives rise to a separate cause of action • Any web page: • accessible by computer user • can be read and understood • = publication

7. “Online Archive” • For purposes of our discussion: • Electronic versions of traditional archives (such as those maintained by newspapers) • Historical blogs (type of online diary) • Other electronic discussion forums

8. Problem • Courts on both sides of the Atlantic deal with this problem by following one of two approaches: • Single publication rule • Multiple publication rule

9. Single publication rule This rule does NOT allow • multiple defamation suits to arise • from a single defamatory statement • published multiple times • Limitation period runs from date of • 1st publication (NOT the time of each publication even if copies made & republished years later) • Despite fact: it is deemed statement published only once → plaintiff can recover ALL the damage as a result of the multiple publications

10. Multiple publication rule • Each publication of defamatory material gives rise to a separate cause of action • each “hit” on webpage creates new publication • potentially giving rise to a new cause of action • Each cause of action – its own limitation period • → Multiplicity of suits • → Suit each time there is access

11. UK Multiple publication rule ▪ Duke of Brunswick v Harmer ▪ UK Limitations Act 1980: ▪ Eachseparate publication is subject to a limitation period of 1 year ▪ from the time material is accessed - Principle applied in various cases - Rule was upheld: Loutchansky v The Times Newspapers Ltd

12. Loutchancky v The Times Newspapers Ltd • Two actions for libel: 1st: October 1999 - article published in Times → Times online archive – public access 2nd : December 2000 - article in online archive Iro 2nd action Court of Appeal: • Limitation period iro archives • Any privilege

13. European Court of Human Rights ▪Times application: multiple publication rule → breached right to freedom of expression under Art 10 ▪ ECHR (11 March 2009) ◦ No violation Art 10 ◦ 2 actions within 15 months of publ – applicant not hindered to defend itself ◦ Not a disproportionate interference with freedom of press (thus no ceaseless liability)

14. Considering arguments for/against: need to maintain a balance

15. Arguments for and against: Multiple publication rule Single publication rule

16. Arguments for and against multiple publication rule 1 Limitation period (1 year) • Claimants little time to prepare ↔ • Defendants after lapse of time – difficult to build defence – records & witnesses not available

17. Arguments: Multiple Publication rule (continued) 2 Unfair to deny right to redress iro archived material ↔ Potentially open-ended liability 3Archives “stale news” (damages small) ↔ instantly displayed, distributed & downloaded around the world many years after 1st publ 4Warning notice on the archive

18. Arguments for and against single publications rule • Legal certainty, prevent open-ended liability, remove obstacle of having to build defence against old claim ↔ ▪ restrict redress (unaware of orig publ) → if no suit, material accessible indefinitely ▪ no incentive to remove/ amend/ notice Suggestions ▪ One format defamatory → other formats ▪ Re-transmitted in new format

19. What constitutes a “new publication”? • US: following = separate publications: ▪ morning & afternoon editions of newspapers ▪ hardback & paperback editions of a book ▪ the same previously published article in the next edition of a monthly magazine ▪ BUT the reprinting of a magazine edition in response to public demand does NOT constitute a new publication ▪ Modified online material = new publication? Firth v State of New York

20. What constitutes a “new publication”? • US: following = separate publications: ▪ morning & afternoon editions of newspapers ▪ hardback & paperback editions of a book ▪ the same previously published article in the next edition of a monthly magazine ▪ BUT the reprinting of a magazine edition in response to public demand does NOT constitute a new publication ▪ Modified online material = new publication? Firth v State of New York

21. Limitation period ▪ Central aim: balance between defendants and claimants • Date of PUBLICATION or date of KNOWLEDGE? ▪ Single publication rule: • Date of publication: time barred if no knowledge • Date of knowledge: not time barred • Multiple publication rule: • Date of publication: greater certainty • Date of knowledge: disadvantage → defendant: length of time potentially vulnerable • In practice most cases date of knowledge = date of publication

22. Single publication rule rejected in: Australia Canada But UK: single publication rule now proposed in Defamation Bill

23. UK Defamation Bill: 8 Single publication rule (1) This section applies if a person – (a) publishes a statement to the public (“the first publication”), and (b) subsequently publishes (whether or not to the public) that statement or a statement that is substantially the same (2) “Publication to the public” in (1) = includes section of public

24. Defamation Bill (3) For purposes of the Limitations Act 1980 (time limit for actions for defamation) any cause of action against the person for defamationiro subsequent publication is to be treated as having accrued on date of first publication (4) This section does not apply to subsequent publication if manner of that publication is materially different from the manner of the first publ

25. Defamation Bill (5) In determining whether the manner of a subsequent publication is materially different from the manner of the first publication, the court may have regard to (amongst others): (a) level of prominence a statement is given; (b) extent of the subsequent publication

26. Dafamation Bill • (6) Where this section applies – • (a) it does not affect the court’s discretion under section 32A of the Limitations Act 1980 (discretionary exclusion of time limit for actions for defamation, etc) • Safeguard: S 32A provides broad discretion – requires court to have regard to all the circumstances of the case

27. CONCLUSION ▪ Other possible option ? • Issues complex and controversial • No easy answers

28. Cyberlibel has generated controversy for many years: “Like Wyatt Earp arriving in Dodge City, law and order has come to cyberspace.” W J Moore “Taming Cyberspace” (1992) “Maybe libel law is obsolete. Maybe it always was. But in the world of Net communications, it is hard to see why anyone should weep if libel lawsuits disappeared altogether” M Godwin “ Libel Law: Let it Die” Wired 1996 “To say that libel and slander are rampant on the Internet would be an understatement” T Muth “Old Doctrines on a New Frontier: Defamation and Jurisdiction in Cyberspace” The [Wisconsin] Courier 1995

29. Justice Kirby in Dow Jones and Company Inc v Gutnick [2002] HCA stated: “Lord Bingham of Cornhill recently wrote that, in its impact on the law of defamation, the Internet will require “almost every concept and rule in the field….to be reconsidered in the light of this unique medium of instant worldwide communication.” This appeal livens such a reconsideration.