Online defamation Online defamation – single or multiple – single or multiple publication rule?publication rule?

Prof Sanette Nel

University of South Africa

IntroductionIntroduction▪ ▪ 1830 Duke of Brunswick1830 Duke of Brunswick -- -- Weekly Dispatch newspaperWeekly Dispatch newspaper

▪ ▪ PROBLEMPROBLEM2009 in Internet Age2009 in Internet AgeCan businessman sue the newspaper more Can businessman sue the newspaper more than once?than once?If so, how many times?If so, how many times?

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)

DefamationDefamation

Elements of defamation:Elements of defamation:- ActAct (publication of words/behaviour)(publication of words/behaviour)

- WrongfulnessWrongfulness (infringement of a person’s right (infringement of a person’s right to a good name/reputation)to a good name/reputation)

- Injury to personality Injury to personality (defamatory effect of (defamatory effect of the words/behaviour)the words/behaviour)

- IntentionIntention (animus iniuriandi with exception of (animus iniuriandi with exception of negligence in case of media)negligence in case of media)

- Causal connectionCausal connection between the between the actact and the and the injury to personalityinjury to personality

Defences

The defendant can rely on defences such as:The defendant can rely on defences such as:

Truth and in the public interestTruth and in the public interest Fair commentFair comment Absolute privilegeAbsolute privilege Qualified privilegeQualified privilege Media privilege Media privilege (reasonable)(reasonable)

Secondary publishersSecondary publishers

PublicationPublication

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

““Online Archive”Online Archive”

For purposes of our discussion: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

ProblemProblem

Courts on both sides of the Atlantic deal with Courts on both sides of the Atlantic deal with this problem by following one of two this problem by following one of two approaches:approaches:

Single publication ruleSingle publication rule Multiple publication ruleMultiple publication rule

Single publication ruleSingle publication ruleThis rule does NOT allow This rule does NOT allow multiplemultiple defamation suits to arise defamation suits to arise from a from a singlesingle defamatory statement defamatory statement published published multiple timesmultiple 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 Despite fact: it is deemed statement published only onceonly once

→ plaintiff can recover → plaintiff can recover ALL the damageALL the damage as a result of the as a result of the

multiple publicationsmultiple publications

Multiple publication rule 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

UK Multiple publication UK Multiple publication rulerule

▪ Duke of Brunswick v Harmer

▪ UK Limitations Act 1980:▪ Each separate 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

Loutchancky v Loutchancky v The Times Newspapers The Times Newspapers

LtdLtd 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:1) Limitation period iro archives2) Any privilege

European Court of Human European Court of Human RightsRights

▪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)

Considering arguments Considering arguments for/against: need to for/against: need to maintain a balancemaintain a balance

Arguments for and Arguments for and against:against:

Multiple publication ruleMultiple publication rule

Single publication ruleSingle publication rule

Arguments for and Arguments for and against multiple against multiple publication rulepublication rule

1 Limitation period (1 year) Claimants little time to prepare ↔ Defendants after lapse of time – difficult to

build defence – records & witnesses not available

Arguments: Multiple Arguments: Multiple Publication rule Publication rule

(continued)(continued)2 Unfair to deny right to redress iro archived

material ↔ Potentially open-ended liability

3 Archives “stale news” (damages small) ↔instantly displayed, distributed & downloaded around the world many years after 1st publ

4 Warning notice on the archive

Arguments for and Arguments for and against against

single publications rulesingle publications rule Legal certainty, prevent open-ended liability, Legal certainty, prevent open-ended liability,

remove obstacle of having to build defence remove obstacle of having to build defence against old claim against old claim ↔↔

▪▪ restrict redress (unaware of orig publ) → if restrict redress (unaware of orig publ) → if no suit, material accessible indefinitelyno suit, material accessible indefinitely

▪▪ no incentive to remove/ amend/ noticeno incentive to remove/ amend/ notice

SuggestionsSuggestions▪ ▪ One format defamatory → other formatsOne format defamatory → other formats▪ ▪ Re-transmitted in new formatRe-transmitted in new format

What constitutes aWhat constitutes a “new publication”? “new publication”?

US: following = separate publications:▪▪ morning & afternoon editions of newspapers▪▪ hahardback & 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?Modified online material = new publication?Firth v State of New YorkFirth v State of New York

What constitutes aWhat constitutes a “new publication”? “new publication”?

US: following = separate publications:▪▪ morning & afternoon editions of newspapers▪▪ hahardback & 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?Modified online material = new publication?Firth v State of New YorkFirth v State of New York

Limitation periodLimitation 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

Single publication rule Single publication rule rejected in:rejected in:

AustraliaAustralia CanadaCanadaBut But UK: single publication rule now UK: single publication rule now proposed in Defamation Billproposed in Defamation Bill

UK Defamation Bill: UK Defamation Bill: 8 Single 8 Single publication rulepublication rule

(1) (1) This section applies if a person –This section applies if a person –

(a) (a) publishes a statement to the public publishes a statement to the public (“the first (“the first publication”), publication”), andand

(b) (b) subsequently publishes subsequently publishes (whether or not to the (whether or not to the public) that statement or a statement that is public) that statement or a statement that is substantially the samesubstantially the same

(2) (2) “Publication to the public” in (1) = includes section of“Publication to the public” in (1) = includes section of publicpublic

Defamation Bill Defamation Bill

(3) (3) For purposes of the Limitations Act 1980 (time limit For purposes of the Limitations Act 1980 (time limit for actions for defamation) for actions for defamation) any cause of action any cause of action

against the person for defamationagainst the person for defamation iro subsequent iro subsequent publication is to be treated as having accrued on publication is to be treated as having accrued on date date of first publicationof first publication

(4) (4) This section does This section does notnot apply to subsequent apply to subsequent publication if publication if manner of that publication ismanner of that publication is materially different from the manner of the first publmaterially different from the manner of the first publ

Defamation BillDefamation Bill (5) In determining whether the manner of a(5) In determining whether the manner of a subsequent publication is subsequent publication is materially materially different different from the manner of the first from the manner of the first

publication, the court may have regard to publication, the court may have regard to (amongst others): (amongst others):

(a) level of prominence a statement is (a) level of prominence a statement is given;given; (b) extent of the subsequent publication(b) extent of the subsequent publication

Dafamation BillDafamation Bill

(6) (6) Where this section applies –Where this section applies – (a)(a) it does not affect the it does not affect the court’s court’s

discretion discretion under under section 32A of the section 32A of the Limitations Act 1980 Limitations Act 1980 (discretionary (discretionary exclusion of time limit for actions for exclusion of time limit for actions for defamation, etc)defamation, etc)

Safeguard: Safeguard: S 32A provides S 32A provides broad discretion broad discretion – requires court to have regard to all the – requires court to have regard to all the circumstances of the casecircumstances of the case

CONCLUSIONCONCLUSION

▪ Other possible option ?

Issues complex and controversial No easy answers

Cyberlibel has generated controversy Cyberlibel has generated controversy for many years:for many years:

““Like Wyatt Earp arriving in Dodge City, law and Like Wyatt Earp arriving in Dodge City, law and order has come to cyberspace.” order has come to cyberspace.” W J Moore “Taming W J Moore “Taming Cyberspace” (1992)Cyberspace” (1992)

““Maybe libel law is obsolete. Maybe it always was. But Maybe libel law is obsolete. Maybe it always was. But in the world of Net communications, it is hard to see in the world of Net communications, it is hard to see why anyone should weep if libel lawsuits disappeared why anyone should weep if libel lawsuits disappeared altogether” altogether” M Godwin “ Libel Law: Let it Die” M Godwin “ Libel Law: Let it Die” WiredWired 1996 1996

““To say that libel and slander are rampant on the To say that libel and slander are rampant on the Internet would be an understatement” T Muth “Old Internet would be an understatement” T Muth “Old Doctrines on a New Frontier: Defamation and Doctrines on a New Frontier: Defamation and Jurisdiction in Cyberspace” Jurisdiction in Cyberspace” TheThe [Wisconsin] [Wisconsin] CourierCourier 1995 1995

Justice Kirby in Justice Kirby in Dow Jones and Company Inc v Dow Jones and Company Inc v GutnickGutnick [2002] HCA stated: [2002] HCA stated:

““Lord Bingham of Cornhill recently wrote Lord Bingham of Cornhill recently wrote that, in its impact on the law of that, in its impact on the law of defamation, the Internet will require defamation, the Internet will require “almost every concept and rule in the “almost every concept and rule in the field….to be reconsidered in the light of field….to be reconsidered in the light of this unique medium of instant worldwide this unique medium of instant worldwide communication.” This appeal livens such a communication.” This appeal livens such a reconsideration.reconsideration.