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FOURTH
SECTION
CASE OF TIMES NEWSPAPERS LTD (NOS. 1 AND 2) v. THE UNITED
KINGDOM
(Applications
3002/03 and 23676/03)
JUDGMENT
STRASBOURG
10 March
2009
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Times Newspapers
Ltd (Nos. 1 and 2) v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Lech
Garlicki,
President,
Nicolas
Bratza,
Giovanni
Bonello,
Ljiljana
Mijović,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
judges,
and Lawrence
Early, Section
Registrar,
Having
deliberated in private on 17 February 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 3002/03 and 23676/03)
against the United Kingdom of Great Britain and Northern Ireland
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Times Newspapers Ltd on 28 October 2002 and 28
July 2003 respectively.
- The
applicant was represented by Reynolds Porter Chamberlain, a law firm
in London. The United Kingdom Government (“the Government”)
were represented by their Agent, Mr J. Grainger of the Foreign and
Commonwealth Office.
- The
applicant alleged that the rule under United Kingdom law whereby each
time material is downloaded from the Internet a new cause of action
in libel proceedings accrued (“the Internet publication rule”)
constituted an unjustifiable and disproportionate restriction on its
right to freedom of expression.
- On
11 October 2005 the Court declared inadmissible part of the
application and communicated the remainder of the application to the
Government. It also decided to examine the merits of this part of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant, Times Newspaper Ltd, is the proprietor and publisher of
The Times newspaper. The applicant is registered in England.
A. The two articles in The Times
- On
8 September 1999 The Times published a report in the
printed version of the newspaper headlined “Second Russian Link
to Money Laundering”. This report stated:
“British and American investigators are examining
the role of an alleged second Russian mafia boss over possible
involvement in money-laundering through the Bank of New York.
Investigators are understood to be looking at links to
[G.L.: his name was set out in full in the original article], whose
company, Nordex has been described by the CIA as an 'organisation
associated with Russian criminal activity'.
[G.L.]'s name surfaced in earlier money-laundering
investigations which may have links to the Bank of New York affair,
in which millions of dollars of Russian money are alleged to have
been laundered.
The Russian-born businessman came to the attention of
European and American investigators in the early Nineties. They
suspected Nordex of using its former international base in Vienna as
a front for a large-scale money-laundering operation. His name also
figured in a British police report in 1995, known as Operation
Ivan, which looked at the extent of the influence of the Russian
mob in London.
[G.L.] has repeatedly denied any wrong-doing or links to
criminal activity.
Nordex, which has since moved out of Vienna, is also
alleged to have been involved in the smuggling of nuclear weapons and
by the mid-1990s reportedly controlled about 60 businesses in the
former Soviet Union and another 40 companies in the West.
The Times has learnt that these included between
eight and ten off-shore companies in British jurisdictions, including
the Channel Islands and the Isle of Man.
They were administered through a chartered accountant in
central London whose offices and home were raided in 1996 by officers
from the City of London Police.
The companies were suspected of being used to help
launder money from Russia, which was then channelled through European
banks. No charges were ever filed against the accountant.
At about the same time a Yugoslav associate said to have
been a frontman for [G.L.] was stopped and questioned after arriving
at a London airport. No charges were filed against him.
The British investigation into Nordex is believed to
have failed because of the difficulty of establishing that the money
funnelled through off-shore companies controlled by Nordex was linked
to criminal activities.
[G.L.] is alleged to be a former business associate of
Viktor Chernomyrdin, the former Russian Prime Minister, and in 1995
his name hit the headlines after it emerged that he had been
photographed with President Clinton at a Democrat fund-raising event
in 1993.
He is also alleged to have had business dealings with
Semyon Mogilevich, the Hungarian-based mafia figure at the centre of
the Bank of New York investigation.”
- On
14 October 1999 The Times published a second article entitled
“Trader linked to mafia boss, wife claims”. This report
stated:
“A Russian businessman under investigation by
Swiss authorities pursuing allegations of money-laundering was a
friend of [G.L.], a suspected mafia boss, the businessman's wife
claims.
Lev Chernoi, the aluminium magnate under Swiss
investigation, was given access to staff and a chauffeur by [G.L.]
when he moved to Israel, according to Lyudmila Chernoi, Mr Chernoi's
estranged wife ...
If Mrs Chernoi's allegation about a connection between
her husband and [G.L.] is true, it will raise further questions about
Mr Chernoi. In 1996 the CIA described Nordex, a company operated by
[G.L.] and alleged to have been used to launder money and smuggle
nuclear weapons, as an 'organisation associated with Russian criminal
activity'.
In 1996 [G.L.] triggered a row in America after a
photograph was published of him with President Clinton in 1993.
[G.L.] has denied any wrongdoing.”
- Both
articles were uploaded onto the applicant's website on the same day
as they were published in its newspaper.
B. The commencement of proceedings
- On
6 December 1999 G.L. brought proceedings for libel in respect of the
two articles printed in the newspaper against the applicant, its
editor and the two journalists under whose by-lines the articles
appeared, (“the first action”). The defendants did not
dispute that the articles were potentially defamatory and did not
seek to prove that the allegations were true. Instead, they relied
solely on the defence of qualified privilege, contending that the
allegations were of such a kind and such seriousness that they had a
duty to publish the information and the public had a corresponding
right to know.
- While
the first action was underway, the articles remained on the
applicant's website, where they were accessible to Internet users as
part of the applicant's archive of past issues. On 6 December 2000,
G.L. brought a second action for libel in relation to the continuing
Internet publication of the articles (“the second action”).
Initially, the defendants' only defence to the second action was one
of qualified privilege. The two actions were consolidated and set
down for a split trial on issues of liability and then quantum.
- On
23 December 2000, the applicant added the following preface to both
articles in the Internet archive:
“This article is subject to High Court libel
litigation between [G.L.] and Times Newspapers. It should not be
reproduced or relied on without reference to Times Newspapers Legal
Department.”
C. The Internet publications proceedings
- In
or around March 2001 the defendants applied to re-amend their defence
in the second action in order “to contend that as a matter of
law the only actionable publication of a newspaper article on the
Internet is that which occurs when the article is first posted on the
Internet” (“the single publication rule”). They
argued that, as a result, the second action was time-barred by
section 4A of the Limitation Act 1980.
- On
19 March 2001 the High Court refused permission to re-amend the
defence, relying in particular on the common law rule set out in Duke
of Brunswick v Harmer (see paragraph 20 below) that each
publication of a defamation gives rise to a separate cause of action.
The court held that, in the context of the Internet, this meant that
a new cause of action accrued every time the defamatory material was
accessed (“the Internet publication rule”).
- On
20 March 2001 the High Court found that the defendants had no
reasonable grounds for contending that after 21 February 2000 (the
date on which the defendants lodged their defence in the first
action) they remained under a duty to publish the articles on the
Internet. As a result, the court struck out the defence of qualified
privilege in relation to the second action. On 27 March 2001,
judgment was entered for G.L. in the second action, with damages to
be assessed. By this time the applicant had removed the articles from
its website.
D. The Court of Appeal
- The
defendants appealed against the High Court's order of 19 March 2001
rejecting the single publication rule. They argued that the
Internet publication rule breached Article 10, pointing out that as a
result of the rule newspapers which maintained Internet archives were
exposed to ceaseless liability for re-publication of the defamatory
material. The defendants argued that this would inevitably have a
chilling effect on the willingness of newspapers to provide Internet
archives and would thus limit their freedom of expression.
- In
its judgment of 5 December 2001, the Court of Appeal, per Simon Brown
LJ, dismissed the appeal against the order in the second action,
stating:
“We do not accept that the rule in the Duke of
Brunswick imposes a restriction on the readiness to maintain and
provide access to archives that amounts to a disproportionate
restriction on freedom of expression. We accept that the maintenance
of archives, whether in hard copy or on the Internet, has a social
utility, but consider that the maintenance of archives is a
comparatively insignificant aspect of freedom of expression. Archive
material is stale news and its publication cannot rank in importance
with the dissemination of contemporary material. Nor do we believe
that the law of defamation need inhibit the responsible maintenance
of archives. Where it is known that archive material is or may be
defamatory, the attachment of an appropriate notice warning against
treating it as the truth will normally remove any sting from the
material.”
- On
30 April 2002 the House of Lords refused leave to appeal. The parties
subsequently settled the action and the applicant agreed to pay G.L.
a sum of money in full and final settlement of claims and costs
arising in both actions.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Limitation Act 1980
- Section
2 of the Limitation Act 1980 (“the 1980 Act”) sets out a
general limitation period of six years in tort actions. Section 4A of
the 1980 Act qualifies this limitation period as regards defamation
actions and provides as follows:
“The time limit under section 2 of
this Act shall not apply to an action for–
(a) libel or slander,
(b) slander of
title, slander of goods or other malicious falsehood,
but no such action shall be brought
after the expiration of one year from the date on which the cause of
action accrued.”
- Section
32A of the 1980 Act provides:
“(1) It if appears to the court that it would be
equitable to allow an action to proceed having regard to the degree
to which–
(a) the operation of section 4A of this Act prejudices
the plaintiff or any person whom he represents, and
(b) any decision of the court under this subsection
would prejudice the defendant or any person whom he represents,
the court may direct that that section shall not apply
to the action or shall not apply to any specified cause of action to
which the action relates.
(2) In acting under this section the court shall have
regard to all the circumstances of the case and in particular to–
(a) the length of, and the reasons for, the delay on the
part of the plaintiff;
(b) where the reason or one of the reasons for the delay
was that all or any of the facts relevant to the cause of action did
not become known to the plaintiff until after the end of the period
mentioned in section 4A–
(i) the date on which any such facts did become known to
him, and
(ii) the extent to which he acted promptly and
reasonably once he knew whether or not the facts in question might be
capable of giving rise to an action; and
(c) the extent to which, having regard to the delay,
relevant evidence is likely–
(i) to be unavailable, or
(ii) to be less cogent than if the action had been
brought within the period mentioned in section 4A.”
B. The Internet publication rule
- Duke
of Brunswick v Harmer [1849] 14 QB 154 lays down a common law
rule of some significance. On 19 September 1830 an article was
published in the Weekly Dispatch. The limitation period for
libel was, at that time, six years. The article defamed the Duke of
Brunswick. Seventeen years after its publication an agent of the Duke
purchased a back number containing the article from the Weekly
Dispatch's office. Another copy was obtained from the British
Museum. The Duke sued on those two publications. The defendant
contended that the cause of action was time-barred, relying on the
original publication date. The court held that the delivery of a copy
of the newspaper to the plaintiff's agent constituted a separate
publication in respect of which suit could be brought.
- In
Godfrey v Demon Internet Limited [2001] QB 201 the respondent
brought an action in defamation against the appellants who were
Internet service providers. They had received and stored on their
news server an article, defamatory of the respondent, which had been
posted by an unknown person using another service provider. The judge
stated:
“In my judgment the defendants, whenever they
transmit and whenever there is transmitted from the storage of their
news server a defamatory posting, publish that posting to any
subscriber to their ISP who accesses the newsgroup containing that
posting. Thus every time one of the defendants' customers accesses
'soc culture thai' and sees that posting defamatory of the plaintiff
there is a publication to that customer.”
C. The defence of qualified privilege
- The
leading case on the defence of qualified privilege is Reynolds v
Times Newspapers [2001] 2 AC 127. That case established that
qualified privilege is an absolute defence to libel proceedings. In
the leading judgment before the House of Lords, Lord Nicholls of
Birkenhead explained the defence as follows:
“The underlying principle is conventionally stated
in words to the effect that there must exist between the maker of the
statement and the recipient some duty or interest in the making of
the communication. Lord Atkinson's dictum, in Adam v. Ward
[1917] A.C. 309, 334, is much quoted:
'a privileged occasion is ... an occasion where
the person who makes a communication has an interest or a duty,
legal, social, or moral, to make it to the person to whom it is made,
and the person to whom it is so made has a corresponding interest or
duty to receive it. This reciprocity is essential'.”.
D. Press Complaints Commission Code of Conduct
- The
Press Complaints Commission has adopted a code of conduct which is
regularly reviewed and amended as required. Paragraph 1 of the
current Code of Conduct reads as follows:
“1. Accuracy
i) The Press must take care not to publish inaccurate,
misleading or distorted information, including pictures.
ii) A significant inaccuracy, misleading statement or
distortion once recognised must be corrected, promptly and with due
prominence, and - where appropriate - an apology published.
iii) The Press, whilst free to be partisan, must
distinguish clearly between comment, conjecture and fact.
iv) A publication must report fairly and accurately the
outcome of an action for defamation to which it has been a party,
unless an agreed settlement states otherwise, or an agreed statement
is published.”
E. The US single publication rule
- Unlike
the United Kingdom court, the courts of the United States of America
have chosen to apply the “single publication rule”. In
the case of Gregoire v GP Putnam's Sons (1948) 81 N.E.2d 45 a
book originally put on sale in 1941 was still being sold in 1946
following several reprints. The New York Court of Appeals considered
the rule in Duke of Brunswick v Harmer, but concluded that it
was formulated “in an era which long antedated the modern
process of mass publication” and was therefore not suited to
modern conditions. Instead, the court held that the limitation period
started to run in 1941, when the book was first put on sale. The
court pointed out that
“Under [the rule in Duke of Brunswick v Harmer]
the Statute of Limitation would never expire so long as a copy of
such book remained in stock and is made by the publisher the subject
of a sale or inspection by the public. Such a rule would thwart the
purpose of the legislature.”
- The
single publication rule was subsequently applied to a website
publication in Firth v State of New York (2002) NY int 88. In
that case, a report published at a press conference on 16 December
1996 was placed on the internet the same day. A claim was filed over
a year later. The New York Court of Appeals held that the limitation
period started when the report was first uploaded onto the website
and did not begin anew each time the website version of the report
was accessed by a user. The court observed that:
“The policies impelling the original adoption of
the single publication rule support its application to the posting of
... the report ... on the website ... These policies are even more
cogent when considered in connection with the exponential growth of
the instantaneous, worldwide ability to communicate through the
Internet ... Thus a multiple publication rule would implicate an even
greater potential for endless retriggering of the statute of
limitations, multiplicity of suits and harassment of defendants.
Inevitably, there would be a serious inhibitory effect on the open,
pervasive dissemination of information and ideas over the Internet
which is, of course, its greatest beneficial promise.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
- The
applicant complains that the Internet publication rule constitutes an
unjustifiable and disproportionate restriction of its right to
freedom of expression as provided in Article 10 of the Convention,
which reads, insofar as relevant, as follows:
“1. Everyone has the right to freedom
of expression. This right shall include freedom to hold opinions and
to receive and impart information and ideas without interference by
public authority and regardless of frontiers. This Article shall not
prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society ... for the
protection of the reputation or rights of others ...”
A. Admissibility
-
The Court has consistently emphasised that Article 10 guarantees not
only the right to impart information but also the right of the public
to receive it (see Observer and Guardian v. the United
Kingdom, 26 November 1991, § 59(b), Series A no. 216; Guerra
and Others v. Italy, 19 February 1998, § 53, Reports of
Judgments and Decisions 1998 I). In light of its
accessibility and its capacity to store and communicate vast amounts
of information, the Internet plays an important role in enhancing the
public's access to news and facilitating the dissemination of
information generally. The maintenance of Internet archives is a
critical aspect of this role and the Court therefore considers that
such archives fall within the ambit of the protection afforded by
Article 10.
- The
Court concludes that the applicant's complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. The merits
1. The parties' observations
a. The applicant
- The
applicant contended that the Internet publication rule restricted its
ability to maintain a publicly accessible Internet archive. It
pointed to the “chilling effect” that the rule had upon
freedom of expression, which it said was aggravated by the fact that
it had not actively sought to disseminate the information contained
in its Internet archive. The applicant submitted that Article 10
required the adoption of a single publication rule.
- The
applicant contested the finding of the Court of Appeal that the
maintenance of archives constituted an insignificant aspect of
freedom of expression. The applicant pointed to the importance of the
integrity and availability of historical records to an open and
democratic society.
- The
applicant argued that since the defence of qualified privilege was a
complete defence to the libel claim, it was under no obligation to
publish a qualification in respect of the relevant articles until the
litigation had been resolved. It pointed out that the Code of
Practice of the Press Complaints Commission obliged newspapers to
post a notice or qualification where a publication had been the
subject of a judgment or settlement in favour of the complainant. Any
other approach would require a large number of articles to be
qualified. Attempts to limit qualification to those articles which
were potentially libellous would be difficult: because the libellous
nature of a publication may change over time, the applicant would be
required to keep the entirety of its Internet archive under review.
The applicant pointed out that approximately 500 items were uploaded
onto its Internet archive every day.
- The
applicant argued that it was open to the Court to consider the
general principle which arose, notwithstanding the specific facts of
the case. Although the applicant accepted that G.L.'s rights were
also engaged, it considered that a single publication rule would not
constitute an excessive restriction on the right of effective access
to the court.
b. The Government
- The
Government relied on the conclusions in the domestic proceedings that
the journalists had not demonstrated the requisite standard of
responsibility in respect of the two articles. They further relied on
the fact that no qualification was added to the articles on the
applicant's website until 23 December 2000, over 12 months after the
original libel proceedings were initiated.
-
Although the Government accepted that maintaining archives had a
social utility, they considered that this was not an aspect of the
exercise of freedom of expression which was of central or weighty
importance, archive material being “stale news”. In the
present case, the Government argued that there was no evidence that
the applicant had been prevented or deterred from maintaining its
online archive. Furthermore, the steps required of the applicant to
remove the sting from its archive material were not onerous.
- As
regards the applicant's claim of ceaseless liability, the Government
observed that no question of ceaseless liability arose in the present
case. The Government pointed out that the second action was
contemporaneous with the first action and did not raise stale
allegations many years after the event. In any case, even under a
single publication rule, (1) the continued publication of articles
which the applicant knew to be defamatory, which were not qualified
in any way and which were not defended as true would constitute a
separate actionable tort under English law; and (2) if accompanied by
a statutory discretion along the lines of section 32A of the 1980
Act, the court may well have exercised that discretion to allow G.L.
to bring the second action, having regard to the circumstances.
- The
Government highlighted that the present case also engaged the Article
8 and Article 6 rights of G.L. In the choice between the single
publication rule and the Internet publication rule, these competing
interests should be balanced. They pointed to the fact that there was
no consistency of approach to this issue in other jurisdictions and
concluded that, on the facts of this case, the application of the
Internet publication rule was a permissible and proportionate
restriction on the applicant's right to freedom of expression and did
not violate Article 10.
2. The Court's assessment
- The
Court notes that judgment was entered against the applicants in the
second action. Furthermore, the applicant subsequently agreed to pay
a sum of money in settlement of G.L.'s claims and costs in both
actions. The Court therefore considers that the second action
constituted an interference with the applicant's right to freedom of
expression. Such interference breaches Article 10 unless it was
“prescribed by law”, pursued one or more of the
legitimate aims referred to in Article 10 § 2 and was “necessary
in a democratic society” to attain such aim or aims.
a. “Prescribed by law”
- The
applicant does not contest the lawfulness of the interference, which
derived from the application of the rule set out in Duke of
Brunswick v Harmer as developed in the case of Godfrey v Demon
Internet Limited. The Court sees no reason to hold that the
interference was not lawful and therefore concludes that the
interference with the applicant's right freedom of expression was
“prescribed by law” within the meaning of Article 10 §
2.
b. Legitimate aim
- The
Internet publication rule is aimed at protecting the rights and
reputation of others. It has not been disputed, and the Court also
agrees, that the interference has a legitimate aim.
“Necessary in a democratic society”
i. General principles
- The
Court reiterates that freedom of expression constitutes one of the
essential foundations of a democratic society and in that context the
safeguards guaranteed to the press are particularly important. Whilst
the press must not overstep the boundaries set, inter alia, in
the interest of “the protection of the reputation or rights of
others”, it is nevertheless incumbent on it to impart
information and ideas of public interest. Not only does the press
have the task of imparting such information and ideas but the public
also has a right to receive them. In this way, the press fulfils its
vital role as a “public watchdog” (Observer and
Guardian v. the United Kingdom, 26 November 1991, § 59,
Series A no. 216).
- The
Court observes that the most careful of scrutiny under Article 10 is
required where measures or sanctions imposed on the press are capable
of discouraging the participation of the press in debates on matters
of legitimate public concern (Bladet Tromsø and Stensaas v.
Norway [GC], no. 21980/93, § 64, ECHR
1999 III). The Court further recalls that
particularly strong reasons must be provided for any measure limiting
access to information which the public has the right to receive (see
Timpul Info-Magazin and Anghel
v. Moldova,
no. 42864/05, § 31, 27 November 2007).
- However,
the Court reiterates that Article 10 does not guarantee a wholly
unrestricted freedom of expression to the press, even with respect to
press coverage of matters of serious public concern. When exercising
its right to freedom of expression, the press must act in a manner
consistent with its duties and responsibilities, as required by
Article 10 § 2. These duties and responsibilities assume
particular significance when, as in the present case, information
imparted by the press is likely to have a serious impact on the
reputation and rights of private individuals. Furthermore, the
protection afforded by Article 10 to journalists is subject to the
proviso that they act in good faith in order to provide accurate and
reliable information in accordance with responsible journalism
(Fressoz and Roire v. France [GC], no. 29183/95, § 54,
ECHR 1999 I and Bladet Tromsø and Stensaas, cited
above, § 65).
- Finally,
it should be recalled that in assessing whether the interference was
justified, it is not the role of the Court to substitute its views
for those of the national authorities but to review the case as a
whole, in the light of Article 10, and consider whether the decision
taken by national authorities fell within the margin of appreciation
allowed to the member States in this area (Handyside v. the United
Kingdom, 7 December 1976, § 50, Series A no. 24).
ii. Application of the principles to the present case
- The
applicants maintain that they are exposed to litigation, without
limit in time, on account of the adoption of the Internet publication
rule instead of the single publication rule.
- The
Court agrees at the outset with the applicant's submissions as to the
substantial contribution made by Internet archives to preserving and
making available news and information. Such archives constitute an
important source for education and historical research, particularly
as they are readily accessible to the public and are generally free.
The Court therefore considers that, while the primary function of the
press in a democracy is to act as a “public watchdog”, it
has a valuable secondary role in maintaining and making available to
the public archives containing news which has previously been
reported. However, the margin of appreciation afforded to States in
striking the balance between the competing rights is likely to be
greater where news archives of past events, rather than news
reporting of current affairs, are concerned. In particular, the duty
of the press to act in accordance with the principles of responsible
journalism by ensuring the accuracy of historical, rather than
perishable, information published is likely to be more stringent in
the absence of any urgency in publishing the material.
- The
Court further observes that the introduction of limitation periods
for libel actions is intended to ensure that those who are defamed
move quickly to protect their reputations in order that newspapers
sued for libel are able to defend claims unhindered by the passage of
time and the loss of notes and fading of memories that such passage
of time inevitably entails. In determining the length of any
limitation period, the protection of the right to freedom of
expression enjoyed by the press should be balanced against the rights
of individuals to protect their reputations and, where
necessary, to have access to a court in order to do so. It is, in
principle, for contracting States, in the exercise of their margin of
appreciation, to set a limitation period which is appropriate and to
provide for any cases in which an exception to the prescribed
limitation period may be permitted (see Stubbings and Others v.
the United Kingdom, 22 October 1996, §§ 54-55, Reports
of Judgments and Decisions 1996 IV).
- On
the facts of the present case, the Court considers it significant
that, although libel proceedings in respect of the two articles were
initiated in December 1999, the applicant did not add any
qualification to the articles in its Internet archive until December
2000. The Court recalls the conclusion of the Court of Appeal that
the attachment of a notice to archive copies of material which it is
known may be defamatory would “normally remove any sting from
the material”. To the extent that the applicant maintains that
such an obligation is excessive, the Court observes that the Internet
archive in question is managed by the applicant itself. It is also
noteworthy that the Court of Appeal did not suggest that potentially
defamatory articles should be removed from archives altogether. In
the circumstances, the Court, like the Court of Appeal, does not
consider that the requirement to publish an appropriate qualification
to an article contained in an Internet archive, where it has been
brought to the notice of a newspaper that a libel action has been
initiated in respect of that same article published in the written
press, constitutes a disproportionate interference with the right to
freedom of expression. The Court further notes that the brief notice
which was eventually attached to the archive would appear to
undermine the applicant's argument that any qualification would be
difficult to formulate.
- Having
regard to this conclusion, it is not necessary for the Court to
consider in detail the broader chilling effect allegedly created by
the application of the Internet publication rule in the present case.
The Court nonetheless observes that the two libel actions brought
against the applicant concerned the same two articles. The first
action was brought some two to three months after the publication of
the articles and well within the one-year limitation period. The
second action was brought a year later, some 14 or 15 months after
the initial publication of the articles. At the time the second
action was filed, the legal proceedings in respect of the first
action were still underway. There is no suggestion that the applicant
was prejudiced in mounting its defence to the libel proceedings in
respect of the Internet publication due to the passage of time. In
these circumstances, the problems linked to ceaseless liability for
libel do not arise. The Court would, however, emphasise that while an
aggrieved applicant must be afforded a real opportunity to vindicate
his right to reputation, libel proceedings brought against a
newspaper after a significant lapse of time may well, in the absence
of exceptional circumstances, give rise to a disproportionate
interference with press freedom under Article 10.
- The
foregoing considerations are sufficient to enable the Court to
conclude that in the present case, the finding by the domestic courts
in the second action that the applicant had libelled the claimant by
the continued publication on the Internet of the two articles was a
justified and proportionate restriction on the applicant's right to
freedom of expression.
- There
has accordingly been no violation of Article 10 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the remainder of the application
admissible;
- Holds that there has been no violation of
Article 10 of the Convention.
Done in English, and notified in writing on 10 March 2009, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki
Registrar President
