The government wants to update UK libel laws to fit the digital age and is considering creating rules that would protect online publishers from future defamation claims. A two-month Ministry of Justice consultation launched on Thursday asks whether the current laws — under which claimants must sue within 12 months of an article’s publication — are outdated now that stories are available for years in online archives. Also, currently each repetition of a libelous statement is treated as a separate offence — meaning that each time someone reads a news story online it could be separately punishable. The MoJ asks whether a US-style single publication rule would be better, where only the first publication can be libelous. Release and Consultation papers (pdf).
The consultation spells it out: “Publishers are potentially liable for any defamatory material published by them and accessed via their online archive, however long after the initial publication… and whether or not proceedings have already been brought in relation to the initial publication.” So there could be ticking legal time bombs waiting in online news archives: claimants can sue 10, 20 years or longer after the initial publication if it is continuously published online. And as the years roll on, libel claims become impossible to defend in court as journalists’ sources move on and notebooks get lost.
The consultation sets out three options: a single publication rule within the existing 12-month period; a single publication rule but with a time limit extended to three or even 10 years, or a system where the 12-month limit stays if publishers agree to update archived stories with a clarifying note or even remove them at the request of claimants. The last option would be least favourable for news publishers: trawling through archives righting old wrongs would be unwelcome and costly. The Guardian‘s readers’ editor Siobhain Butterworth has spoken of the large number of requests the paper gets to amend its online archive.
Much of this debate stems from the Loutchansky v Times Newspapers case in 2002, where a Russian businessman brought two libel claims to the High Court in relation to articles published in The Times in 1999 — he didn’t sue until more than 12 months after publication because, he argued, the article was available online. The paper then appealed to the European Court of Human Rights that its right to freedom of expression had been impaired, but the appeal was thrown out in March.