Full case report
Times Newspapers Ltd (Nos 1 and 2) v The United Kingdom
Reference Application nos 3002/03 and 23676/03;  EMLR 14
Court European Court of Human Rights
Judge Garlicki J, President, Bratza, Bonello, Mijovic, Hirvela, Bianku, Vucinic, Early JJ
Date of Judgment 10 Mar 2009
Freedom of expression – Article 10 ECHR – Libel – Internet publication – Archives – Qualified privilege – Reynolds privilege – Freedom of expression – Article 10 ECHR – Single publication rule – Internet publication rule
The applicant (T) retained two articles in its internet archive after a libel action brought by GL in respect of the hardcopy publication of those articles. GL then brought a second claim in respect of the internet publications. T then added a preface to both articles warning archive users that the article was subject to High Court litigation. T lost the second claim.
T applied to the ECHR for a ruling that the domestic courts’ refusal to apply a single publication rule to internet publications was an unjustifiable and disproportionate restriction of its Art 10 right. T argued that the “internet publication rule” restricted its ability to maintain an archive and exposed T to ceaseless liability, and there should not be any obligation to publish qualifications until litigation had been resolved.
Whether the “internet publication rule” constituted a violation of Article 10 ECHR
Finding no violation of Art 10:
The press provide a valuable role by maintaining archives and the limitation period in libel actions is intended to ensure that claimants act quickly. However, the domestic court had not suggested that the articles be removed altogether, and the obligation to attach notice to archive material where the newspaper is on notice that a libel action has been initiated in respect of that same article is not a disproportionate interference Art 10. On the facts, the ceaseless liability issue did not arise but libel proceedings brought against a newspaper after a significant lapse of time may, in the absence of exceptional circumstances, give rise to a disproportionate interference with press freedom under Art 10.
An important judgment rejecting the need for a US style “single publication” rule and affirming the validity of the “internet publication rule” – the principle that each internet publication gives rise to a separate cause of action. The Strasbourg ruling also confirms the view of the Court of Appeal in Loutchansky v Times Newspapers that a legal notice on an article subject to complaint was a proportionate means of balancing the competing rights. Whilst in the main this judgment will not be welcomed by those who maintain internet archives, some comfort can be taken from the strong indication that a claimant who delays bringing a claim for a significant period of time may well lose the protection of the rule.
Reynolds Porter Chamberlain for the applicant
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