Online libel: to delete or not delete?

Newspapers are asked to remove material from their online archives for a variety of reasons. When legal action is threatened, the claimant will usually demand that the article is deleted and the newspaper lawyer’s first task is to decide whether to comply. Doing nothing may aggravate the claim and increase the damages payable.

The Defamation Act 1996 brought the limitation period (the time limit for bringing a libel action) down from three years to a year. However, under English law, an article is published (again) every time someone downloads it.

This proposition, also known as the multiple publication rule, is based on The Duke of Brunswick’s case which was decided more than 150 years ago. The Duke was defamed by the Weekly Dispatch but waited 17 years to sue. He didn’t sue on the original publication – he would have been out of time – instead he sent his servant to buy a back number from the Weekly Dispatch offices and got another copy from the British Museum. The court held that these were fresh publications and allowed the Duke of Brunswick to bring a claim based on these two copies.

The effect of the Brunswick case is that, effectively, the limitation period is meaningless for online publications and this poses a threat to online archives, but the courts have rejected arguments about the public interest in maintaining them without amendment. Lord Phillips said in Loutchansky vs Times Newspapers (2001) that ‘archive material is stale news and its publication cannot rank in importance with the dissemination of contemporary material.’

The decision about whether to delete an article is not always straightforward. If a paper intends to defend a claim then it is less inclined to remove an article. In Loutchansky, the court of appeal accepted that it may not always be necessary to delete material. ‘The attachment of an appropriate notice warning against treating it as the truth will normally remove any sting from the material,’said Lord Phillips.

Recent case law shows that the Duke of Brunswick case is assailable – a claimant must prove not only that the article has been downloaded by someone else but also that enough people read it to justify bringing proceedings. In Yousef Abdul Latif Jameel vs Dow Jones (2005), the court of appeal said the Duke of Brunswick case would not survive an application to strike out for abuse of process today.

In Jameel, the claimants argued that the court should infer substantial publication based on WSJ.com’s 6,000 subscribers, but Dow Jones was able to show that only five subscribers in this jurisdiction had accessed the article and that three of them were in the claimant’s camp. The other two did not recollect reading it.

The court of appeal did not allow the case to proceed, as Lord Phillips said that where there has been publication to only a handful of people, claimants can only expect nominal damages and the cost of the exercise will be out of all proportion to the result.

This is good news if a newspaper can prove that the article was downloaded by only a handful of people. In other cases, the courts may infer that there has been substantial publication.

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