Publishers' indefinite liability for defamatory material in their online archives is not a restriction on their rights to free speech, the European Court of Human Rights (ECHR) has ruled. The decision backs a 160-year-old rule of English law. The Times newspaper had argued that the burden of indefinite liability was so onerous …
It doesn't seem fair but is
What is the usual balance of power in these cases?
Giant media corporation reports something on someone. If said person is relatively poor (No legal aid for libel cases in the UK) they can pretty well say what they like and not worry about results. Your life could be destroyed. SFW.
UK newspapers do not have to be balanced in their reporting. The Representation of the Peoples Act (which covers TV) does not affect newspapers
Where the situation is more balanced (small website, fairly well off person) an update (of the kind issued by El Reg for example) would seem fair. Note that could include whatever way a case went. "Mr X accused of 15 counts of yyy," could be followed by "Mr X found guilty of 12 counts of yyy"
Robert Maxwell would have taken advantage of the system, but he did that anyway. The failure to report their were (at least) "Concerns" on his business methods was a major failure of the British press for most of his career.
Now what happens when the hosting is moved off shore?
I can see the points on both sides of this one, but do find the end result a little worrying. Got a blog? Got a forum? Got any kind of Internet message or news archive? Then - potentially - be prepared for every Tom, Dick and Harry who takes exception to something that someone said about them to come a-knocking on your door with lawyers in tow. And to keep on doing so countless times for as long as the archive exists in an accessible form and anyone happens to take a look at it. And what about Google cache - does that count?
Yup, if the ambulance-chasers cotton on to this, I can see the potential for humongous amounts of vexatious litigation that will dwarf the legitimate cases.
(Paris, 'cos I'm sure she could make a mint out of this ruling if she wanted.)
The article is only published when it is uploaded to the server, not when it is read. Or does the court really believe that reading is tantamount to publishing?
Don't like this much..
I would say in this case that the activity of publishing an archive of newspapers is more like making a copy of something in a library rather than a full republishing of an article. The article is historical data which is not modified or recreated each time - it is in a file which physically exists in electronic form and is duplicated, somewhat like a photocopier does.
I assume there are only minor revisions (if any) to the articles in the archive (fixing names and misspellings). Therefore, once written and published, the electronic article is like a physical book or newspaper that one can photocopy and that can be read many times over. I don't think making a photocopy is republishing (but IANAL), even if the copy comes from the original publisher.
If the court thinks there is a new instance of defamation for each copy of the article, the publisher could perhaps include a disclaimer before the article is viewed, something like this:
'This article was found in court to be defamatory, the publisher is making it available only for archival purposes and by downloading it the viewer understands that no new publication of the article will take place, blah blah blah..'
Or just show a static picture of a photocopy of the article... :-)
Odd. I would have thought that the creation of the archive would be considered the actual "act" of publication, whereas transmitting the page would constitute only an imprint of that publication. Does this ruling not imply that the Russian dude could also sue bricks and mortar libraries each time anybody accesses a copy of the original printed article, sans qualification?
This law only works if you're very, very rich
The amount of money that a "libelled" person needs in order to bring a case to court is absolutely huge, as if you lose you will be liable for the defence's costs as well as those of your own legal team. However, if you win, your damages will be one of a long line of obligations that the libeller will incur: including the costs of theirs and yours legal beagles. Legal aid? I don't think so!
In practice, therefore the downside of bringing a case is vast and the upside (generally) paltry as the costs incurred could well bankrupt your libeller before you get to see any redress. You'd have to be a maniacal gambler to take such a large bet with such a small prospect of winning.
Of course, if you have a few mil. just sloshing around, earning bugger all returns in these days of low-interest, then what the hell - go for it. The mere threat of an action (given the prospect of being taken to the cleaners by court costs) is usually enough to make your accused cave, on receipt of the first lawyers letter. If for some reason they are too dumb to realise their impending vagrancy, you can try again with their ISP - who, having nothing to gain and a lot to lose, will remove any and everything asked for in the time it takes to file the request.
So what we end up with is a nice, archaic piece of civil law, that works fine between monied "gentlemen" where the costs and awards are bearable. However for the average Joe-in-the-street with any assets at all, the mere possibility of having to defend an action is so far outside their financial reach that they have no alternative but to acquiesce - irrespective of the rights or wrongs, which will never get to be judged.
For historical purposes...
Surely you could maintain the article, whilst clearly stating that it was libellous? A very small cost when compared to the libel damages.
Ah - Libel...
...the peculiarly British laws which enable unprincipled lawyers (if that's not tautology) - eg Peter Carter Ruck - to effectively win the lottery several times a year, by ensuring the generally ungodly - Maxwell, anyone? - to deny freedom of speech to any other citizen, and even those of another country.
Fortunately the latter usually use the famous Pressdram (Private Eye) response when dealing with these parasites.
Is it any surprise that Parliament is stuffed full of unsuccessful/mediocre lawyers?
Presumably they also provided the archive of their retraction in response to the libel?
So we're ignoring half of the story? Considering only that the archive includes the original libel and ignoring that the archive also contains the retraction?
Seems reasonable enough
If the original article was judged to be libellous I can't see any justification for saying that it's perfectly OK to publish that libel again as soon as some fixed time has passed. The courts seem to have got it right this time.
but what if...
your defamatory material is archived by someone else - Google cache, wayback machine etc. ?
I think this is fair
Think about it. The paper says you are child molester.
You sue and clear your name.
Then they allow it to still be accessed online.
Someone Googles your name. Hey your a peado!
Will they think..mmm i wonder if he was cleared in a libel case 2 years later. i think not.
How hard would it be for them to just simply remove the offending article? Not very....
The is disgraceful behaviour by the Times, publishing Mr. Loutchansky's name without any proof of wrongdoing, they should remove his name from the article citing the legal case http://www.ipsofactoj.com/international/2002/Part12/int2002(12)-015.htm
By the way, does anybody know if Mr. Loutchansky actually proved if anybody looked at the article? http://www.theregister.co.uk/2009/01/28/blogger_deleted_comment/
Paris, who doesn’t need to prove if anybody downloaded anything about her.
Orwell would be proud, this judgement creates the Memory Hole.
So, historical archives must now be retrospectively edited to accord with today's version of the truth? Future historians will curse us for our ignorant forgery and falsification of the historical record.
He who controls the present, controls the past. He who controls the past, controls the future.
What kind of idiot loses a libel / defamation case, and then fails to withdraw the offending article?
Was there some kind of technical reason why The Times could not do so in this case?
Solution sounds familiar
So newspaper will be forced to continually rewrite their histories to reflect the current 'truth' I'm sure the main character in a book I read had that job.
What's was it called 1997 - or something ?
I think some people don't quite understand the situation.
The point about Libel is that the original article has to be found to be defamatory and, in order to be defamatory, it cannot be true.
So if a Court has decided that an article is untrue, to continue to allow that (false) article to be available is to repeat the untruth.
The ECHR understands that Right of Freedom of Expression comes with an attendant Responsibility to ensure that what is being expressed is truthful.
If you say wrongful sheet about somebody you gets in trouble. If you say the same wrongful sheet about somebody again you gets in trouble again.
Solution: take the wrongful sheet off the internet and consider it a lesson in life.
@Orwell would be proud, this judgement creates the Memory Hole.
How is this fair?
To those people saying this seems fair, I ask you -- exactly HOW is this fair? They're taking two identical acts (publishing to a physical medium versus publishing to a digital medium) and treating them differently. Unless, that is, you believe that when an article is considered defamatory or libelous, every single copy of the paper containing the article is considered a separate publication and is thus a separate actionable entity.
"The High Court ruled that, based on a case from 1830 involving the Duke of Brunswick, a new defamation occurred every time a piece was published. This meant, it said, that a new cause of action occurred every time defamatory material was accessed on the internet."
I wholeheartedly agree with the 1830 ruling. The key is the word "published". "Published" does not mean "accessed", and never has. Are they actually saying that if a newspaper published a single copy of a paper which defamed someone, then that person could sue the paper every time somebody read that one copy of the paper? That's what this new ruling says with its interpretation of "published == accessed". In fact, using that logic, I could sue a company every single day if they published something defamatory about me. All I have to do is read (access) it each day. What a way to make money!
"Published" means "written and made public". "Accessed" means "retrieved (and probably read)". There's a huge difference. "Published" only equals "accessed" in the same universe in which "made available" equals "up/downloaded, thus guilty of copyright infringement".
@Orwell would be proud - and others
>>historical archives must now be retrospectively edited to accord with today's version of the truth?
That all sounds very dramatic, but it is not really that case here is it?
The article was shown to be defamatory at the time (or shortly after) it was published. Everybody involved agreed to this version of the “truth” as you put it.
Publishing the article again, after everyone aggreed that it was false, would seem to be exactly the act of “rewriting history” that you disagree with.
"Yup, if the ambulance-chasers cotton on to this, I can see the potential for humongous amounts of vexatious litigation that will dwarf the legitimate cases."
I wondered if anyone would pick up on this. I'd say this is a negative feedback system. Ambulance-chasers only chase people with money IE large scale medja outfits. If they spread out and start to hit smaller outfits then people will need some kind of libel-ity insurance.
Publishers who keep on publishing baseless poorly researched stories will be seen as easy meat by the lawyers. Offended parties who sue and keep loosing will be seen as liars and crooks. Of course you can win a Libel case agains a publisher if you lie under oath and / or pay off witnesses to disappear. Now your a perjurer and I think that's perverting the cause of justice.
I think the UK courts have already ruled on blogs and blogging. Cannot remember the result.
Bottom line. On-line archives are like a paper archive, but not exactly. They can have have updates added
Mine will be the one with the collected works of Ted Nelson in, because he started researching most of these sorts of issues about 40 years ago.
@Chris, How is this fair?
Basically you summed it up yourself.
>> "Published" means "written and made public".
The fact is, they wrote it and continue to make it public. The accessed part is basically just there to ensure that the “made public” bit actually happened.
We are not talking about Google cache or copies of newspapers in the library; we are talking about the original publisher offering up copies of the article to anybody who asks.
Consider if a newspaper were about to print a defamatory article, but the whole thing was stopped before delivery and the papers were destroyed. Would it be ok for them to re-print the same article next week, because by then it is history?
Or if the article did get to print, and they had to publish an apology, would it then be OK for the editor to head down to Hyde Park and hand out nice colour photocopies of the original article to all passers by?
It's an interesting one this, isn't it?
As you (and others) have said, online archives are like a paper archive, but not exactly. Assuming that the article was published in the "real" paper and that copies of that edition are still held in archive libraries here and there, would The Times (or any other publisher) be obliged to track down every extant copy of the physical publication and have it redacted (or removed entirely)? And, if they did not, could they be taken to court by the injured party if that person then found a copy of the original paper in the dusty recesses of the Nether Tottington public library (or wherever)? If not, why should things be any different - from the point of view of the law - just because the archive copy is electronic and available on the 'net?
OK, so it's much easier to pull the electronic copy and I guess you can make the argument that the electronic copy is still somehow under the notional direct control of the original publisher, but laws don't tend to be made on the basis of how easy (or otherwise) it is to do something. (Although that may end up having a bearing on their enforcement and interpretation...)
Like I said before, I can see this one from both sides, but find the end result a little unsettling as I can see some potential for its abuse.
Good decision - but what value?
The case of the little guy who cannot afford to sue Big Media for want of a stash of cash in his mattress is paralleled by the case of the rich guy who cannot afford to sue some blogger for want of a stash of cash in the blogger's mattress. To think otherwise is to advertise your seat on com-pen-say-shun wagon and waving a red flag.
It's worth bearing in mind that libel damages are not restricted to actual harm suffered. Perhaps this is because the libel might be technologically reproduced in the future, whereas a slander which has been punished would not.
so what happens
If you say jakki is wakki...oh never mind....it's all true.
OK. Why not change the bloody Law?
I'm with the Yanks on this one. The House of Lords should update the Brunswick ruling to reflect the ease of reproducibility in the digital age.
It should be something like this:
If the source of the libel is not changed after judgement, the legal entity responsible for source of the libel should be held responsible for its continued availability.
If the source continues to make the content deemed libelous available for the sake of contextual or archival history, it should also prominently display the fact that the courts have ruled this content libelous. An apology from the legal entity responsible for the source also be included with the displayed content ("The Courts have ruled that the content in this story is wrong. [LinktToJudgement] This content is made available for reference only." or some similar legal rubbish.) This should handle those sites that simply provide links to content from other sites.
Every access ...
I fully agree that regurgitating your old libel is a crime, but as others have said, this - "a new defamation action can be taken every time online defamatory material is accessed." - seems a little odd. Perhaps it is just poorly worded. I didn't follow the links and read the small print.
Nothing Orwellian about it!
The Times was at fault for not providing a "Qualification" on the archive version of the article until a year after the commencement of proceedings. Re-read the penultimate paragraph of the Reg article again - removal or re-writing of the article was not expected by the courts - only that a "Qualification" was provided. Thus this is not the re-writing of factual history performed by the "Ministry of Truth" described by a somewhat (in my opinion!) overrated second-rate novelist.
As much as it pains me to say it, but the ECHR is quite correct in its ruling: the effort required for the publisher to attach a statement to their own electronic and paper archives when they were notified of the libel action is not an onerous task and so it cannot be "an unjustifiable and disproportionate restriction of its right to freedom of expression"
raeding != publishing
Am I the only one who thing the court have got their definition of publish a bit backwards resulting in a somewhat odd ruling.
From my point of view something is "published" on the internet at the point it is uploaded to the server and becomes available for anyone to read.
So yes re-publishing a libelous newspaper story on the internet may well make them liable to another libel action but only for that one publication (Ie the upload to the server) not everytime someone acceses that article on the website.
If their definition of publish wasnt so backwards the ruling would make sense.
Paris because even she isnt that backwards
I'm with the court on this one.
There can't be too many cases like this, so it would cost the publisher next to nothing to edit the original article in their archive, with a note that the original text was edited because found libellous in court.
It puts a burden on the publisher that is proportional to their willingness to publish potentially libellous material, so its fair enough
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