Charlie Beckett, Director, POLIS

Response to the Ministry of Justice Consultation on Defamation on the Internet: the Multiple Publication Rule (Consultation Paper CP20/09)

Charlie Beckett, Director, POLIS.

Andrew Murray, Reader in Law, Department of Law.

Andrew Scott, Senior Lecturer in Law, Department of Law.

November 2009

About The Respondents

The London School of Economics and Political Science is one of the UK’s leading universities. It is a world-renowned, specialist, social science institution which makes frequent contribution to policy and society.

Since the foundation of the LSE, the study of law has been an integral part of the School's mission. The Department of Law is one of the largest in the School. Its special place in a school of social sciences has given legal studies in the Department a distinctive, interdisciplinary character. The Department has played a major role in policy debates and policy-making, and in the education of lawyers and law teachers from around the world. It enjoys a uniquely cosmopolitan student body, and has deeply influenced legal education in most common law countries. The Department was ranked first among UK law departments in the most recent government research assessment exercise.

POLIS is the journalism think-tank within the Media and Communications Department at LSE. It is a forum for debate about journalism and society and a centre for research and teaching on contemporary UK and international news media. Over the past 24 months, it has conducted a series of seminars with media and legal practitioners on media law issues. These were led by Dr Andrew Scott of the Department of Law, and included high-level workshops on ‘libel-tourism’ and on contempt of court and media publicity.

POLIS Director Charlie Beckett is an award-winning journalist who worked at the BBC and ITN’s Channel 4 News before founding POLIS in 2006. He is a regular commentator, writer and researcher on journalism, and the author of SuperMedia: Saving Journalism So IT Can Save The World (Blackwell 2008). He is a trustee of the Media Society, Article 19 and the Institute of Development Studies.

Andrew Murray is a Reader in Law. He is a Fellow of Gray’s Inn, and is Legal Project Lead of Creative Commons England & Wales. He specialises in Cyber-regulation and Governance and New Media & Communications Regulation. Andrew advises on e-commerce and Web 2.0 projects and has contributed to the New Oxford Companion to Law and the International Encyclopaedia of Communication. Andrew is author of The Regulation of Cyberspace: Control in the Online Environment (Routledge-Cavendish, 2007), and co-editor of Human Rights in the Digital Age (Glasshouse Press, 2006). His new book Information Technology Law: The Law and Society will be published by Oxford University Press in summer 2010.

Andrew Scott is a Senior Lecturer in Law, specialising in media law and regulation and in competition law. He has published widely on these themes, most recently contributing several chapters to the forthcoming edition of Carter-Ruck on Defamation and Privacy (Butterworths/LexisNexis). He has advised the Select Committee on Culture, Media and Sport on aspects of defamation law, the Irish Competition Authority on media plurality, and the BBC Trust on competition law in the media sector.

Contact

Charlie Beckett
POLIS

Tel: 0780 878 6573 / Andrew Murray
Department of Law
Email:
Tel: 020 7849 4645 / Andrew Scott
Department of Law
Email:
Tel: 020 7955 7259

Response to Consultation

1.  The emergence of new media platforms and technologies has caused a paradigm shift in the publishing industries and communications more widely.[1] Importantly, extant laws governing the public sphere may have become outmoded as one consequence of this development. As one illustration, we recognise fully the emergence of heightened legal risk attendant on the operation of the Duke of Brunswick / ‘multiple publication’ rule in the context of the maintaining of online archives of earlier publications. We agree that such archives are socially desirable, and that the degree of perpetuating legal risk faced is therefore inappropriate. So much has been exemplified in the actions fought by Times Newspapers Ltd before the domestic and international courts,[2] and discussed with clarity and concision in the Ministry of Justice consultation paper.

2.  We understand the emphasis placed on the introduction of a ‘single publication rule’ as a means of addressing this problem. For the reasons developed briefly below, however, we would not support such a move. That said, we consider that an almost equally simple and efficacious alternative solution is available. This solution is not dissimilar to the qualified privilege option mooted in the consultation paper, although it would be somewhat more broad-based in application.

3.  It is our view that the conception of the problem at hand – the legal risk faced by ‘traditional’ media companies in their maintaining of easily accessed archives following their move online - should be expanded in two important ways.[3]

4.  First, it must be recognised that online archives are maintained by a broad array of persons in the online environment. The legal risk faced extends far beyond the maintaining of digital archives by traditional media companies. Legacy material produced by individual authors and others will often remain publicly available indefinitely on blogs, in search engine caches, and elsewhere in the online environment. While certainly not often as prominent as the archives of mainstream media companies, the utility of search engines such as Google entails that this material can be readily accessed by all those interested in researching a given topic or individual. Given the present state of the law, such authors and their hosts are equally susceptible to legal action on an ongoing basis. Any change in the law must take account of the fact that not all of those who maintain online archives are as deserving of protection as Times Newspapers or other public-spirited media businesses. Moreover, even angels sometimes sup with the devil.

1. A second – although distinct - extension of the conceptualisation of the problems engendered by online publication is arguably necessary so as to devise appropriate legal protections for the divers authors of online content. The nature of the internet is such that material uploaded by one author can be linked, pasted, adopted, replicated and mashed by others. Indeed, this is a desirable feature of ‘networked journalism’.[4] There is a risk, however, that particular authors can lose any control over how their contributions to the public sphere are subsequently used or where they are located on the web.

1. A fair response to this ‘viralling’ of defamatory comment would be to assert that the author should have contemplated what the ramifications of making the statement online might be. There are two scenarios, however, in which such an approach may be inequitable. In the first case, material may be transposed from one online location to another and in the process the qualifying ‘informational context’ in which material is first made available may be lost. In a second scenario, an apology, correction or retraction issued on the author’s primary publication platform in response to an approach by a disgruntled claimant may not replicated elsewhere across the web. The original author does not retain editorial control in either instance. In the first scenario, existing rules of attribution would almost certainly intervene to protect the original author. Under existing law, this would not be the case in the second scenario. It would seem harsh to attach liability to the original author for continuing online defamation in such circumstances.

1. In addition, we do not believe that reforms focused on a simple move to a single publication rule to address the risks faced by online archivists would take sufficient account of the need also to defend the practice and potentiality of networked journalism that has been facilitated by online digital technologies. This concern is exemplified in the second of the two scenarios outlined in the paragraphs above, where a correction of a defamatory statement is made on the site controlled by an original author but is not then replicated elsewhere.

1. In light of the above, we propose an alternative solution to the single publication rule, but one which adequately reflects both the need to address the legal risk faced by persons maintaining online archives given the social value attaching to such archives, and the importance of facilitating and not deterring networked journalism. This would be a new defence of ‘non-culpable republication’ that would be available in two prescribed circumstances.

Rejection of move to a ‘single publication rule’

9.  Our reservation concerning a move to a single publication rule for online archive publication is bipartite. Primarily, we consider that a single publication rule (even with an extended limitation period) would not always allow for an appropriate balance to be struck between Article 10 rights to communicative freedom and competing rights to privacy and reputation. As recognised in paragraph 12 of the consultation document, this potential conflict of rights lies at the heart of the problem highlighted in the Loutchansky litigation. In attempting to resolve the problems, the personal and social importance of the interests of prospective claimants must not inadvertently be underplayed.

10.  A single publication rule would automatically absolve both the author and the host of an impugned archive statement of any responsibility for its making after the requisite limitation period following first publication. We do not consider that this is appropriate. Not every author of a defamatory statement – or every archivist of online content - is deserving of exoneration from liability. In the online environment, the availability of past statements can continue to be horrendously damaging. For instance, we are aware of a case in which a series of false and malicious allegations were made on a dedicated offshore website by a disaffected former associate regarding the various members of a family. These allegations included false imputations of paedophilia. The ramifications for one family member of the repeated accessing of this content over a prolonged period by means of search engine was that he became effectively unemployable.

11.  At whatever remove it is made from the first uploading of the impugned statement, each republication has the potential to harm the reputation of the person defamed. The speaker / publisher of words that wound is responsible for his or her actions. When a defamatory statement is made, it has the potential to harm the person to whom it refers. This is true of the first and of the twentieth time the statement is made. Where no defence is available, the question of degree of harm may be dealt with as a question of quantum of damages.

12.  We note that it can be argued that each subsequent republication may not be of equal quantum of harm to the original, with the implication that the additional harm done would always minimise over time. As Lord Phillips of Worth Matravers MR noted in Loutchansky: ‘the scale of such publication and any resulting damage is likely to be modest compared with that of the original publication’.[5] This need not be, however, necessarily the case. Indeed, secondary publication after the elapse of time may arguably, perhaps counter-intuitively, be more damaging than much initial publication. As only those with a particular interest in a subject or individual will be motivated to access the material at the later point in time, any impact on reputation may be especially poignant. In terms of damage to reputation, what often matters is who is reading material at a given time. As noted by Mr Justice Eady in Mardas, “whether there has been a real and substantial tort… cannot depend [solely] upon a numbers game”.[6]

13.  In addition to this main concern, in our view rules that are intended to apply to particular technological platforms only are usually poorly designed, and prone to developments in technology. The Commission of the European Union, for example, has been criticised as being techno-deterministic in its Information Society programme, in particular with regard to the design of the e-Money Directive (Dir.2000/46/EC – now repealed) and the Electronic Signatures Directive (Dir.1999/93/EC). It is important that any change made to the law of defamation as a result of this consultation is designed to benefit defamation law across all platforms and is not structured to meet the challenge of a single publication platform.

An alternative defence: ‘non-culpable republication’

14.  We consider that the Defamation Act 1996 requires amendment to prevent Loutchansky-style litigation from exercising a chilling effect on the maintaining of online archives, and to defend the practice of networked journalism. At first take, we are attracted to the alternative solution mooted in paragraphs 25-29 of the discussion paper: that of retention of the multiple publication rule, coupled with the introduction of an extended version of statutory qualified privilege.

15.  On examination, however, we consider that there are limitations of such an approach. First, conceptually, it is demonstrably in the public interest for the types of information currently covered by statutory qualified privilege to be communicated to a wide audience. The same may not be true of the content of archived statements. These may include information that is of the public interest, but equally such information may be anodyne and unimportant. To the extent that there exists a public interest in this context, this pertains without qualification only to the continuing availability of the archive. We consider that the analogy with the existing applications of the statutory qualified privilege defence is somewhat misconceived.

16.  Secondly, we note that the qualified privilege defence can be over-ridden when the claimant can demonstrate that publication is made with ‘malice’. Malice is understood to mean either that the publisher does not hold a positive belief in the truth of the statement or is reckless as to its truth.[7] In the context of a continuing multiple publication rule, the adoption of a qualified privilege approach would require the continual policing of the archive to ensure that statements made therein accorded with the present state of knowledge as to their accuracy. If the publisher learns today – perhaps through further journalistic investigation - that an archived story is not true and yet does not correct this, then he or she would henceforth become liable for harms to reputation. Thirdly, the qualified privilege approach does not take account of the position of the author who may be liable for the reiteration of his statements elsewhere on the internet. Therefore, it does not address the potential impact of existing laws of libel on networked journalism.