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back to article Indefinite liability for online libel must end

The European Court of Human Rights (ECHR) missed an opportunity to kill an absurd libel law this week. That law exposes online news archives around the world to indefinite liability in British courts. It also makes it too easy for subjects of bad press coverage to improve their standing in history. The Times newspaper asked the …

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So even the Victorian ruling was crazy!

> An article appeared in a newspaper in 1830 that defamed the Duke of Brunswick.

> He learned of that article 17 years later and sent a servant to buy a back issue

> from the publisher (and, for good measure, he obtained a second copy from

> the British Museum).

> The court ruled that the action was not time barred:

>> an act of publication occurred when the servant took delivery of the paper.

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Jack Straw consultation, eh

We're still waiting for the promised consultation on the EU data retention directive implementation, Interception Modernization and the uberdatabase to hold all those call and email records, promised late last year for this year.

Something tells me eLibel does not even have that high a public profile.

But the idea of a time limit is attractive. In reality I think most really damaging libels, where careers or livelyhoods have been seriously affected, have taken place relatively soon after actual publication. 1 year seems plenty of time for legal action to be instigated.

IANL as if you did'nt know.

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Sounds like a case of sour grapes

I understand the point of this author's complaint, but I'm not sure I agree with it al all. As he has rightly pointed out, recourse to law is often extremely expensive. If I am defamed I may not have the funds to use wealthy lawyers like him, but two years later I may well do.

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Another option

There is, of course, an alternative to striking down Britain's ceaseless liability' libel law. That is for the editors of publications to insist on sufficient pre-publication investigation - ensuring that the subject is not libeled in the first place.

Or would that be placing to much of a constraint on the British press' freedom of speech?

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Anonymous Coward

Publish retraction and be damned

If the publisher also contains an archive of the *correction* or *retraction*, then surely that counts as annulling the libel.

The publisher cannot make you read the whole thing, he can simply make it available for you to read. Otherwise we're selectively taking a subset of the archived information, for example, it would be like ignoring the second sentence in this statement simply because you choose not to read it:

"FAST is a front group for Microsoft that exaggerates the cost of piracy in order to justify burdening businesses with random spot searches and a presumption of guilt inappropriate in civilized society. Claimed one uninformed pundit on the internet today"

Now FAST could choose not to read the whole thing and sue for the first sentence, since they are not just a front group for Microsoft. But that would be silly and a selective reading. In the similar way, publishing the retraction in the archive should mitigate publishing the original story in the archive.

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Stop

nonsense

I feel that your conclusions are nonsense. If an article was libellous when written an published, it remains libellous and can still do unmerited damage to the subject. Freedom of expression does not include unlimited freedom to injure in any sense. In the age of online comment, when carelessly or mailiciously written material can get an ever wider and longer lasting circulation to people with no way of assessing the veracity of the material, protection is even more important. So the writer has to become more thoughtful, truthful and professional. that can only be a good thing. If the publisher or writer is sure of his or her facts, then where is the problem? If not, why is he lying or risking damage to others?

Freedom of expression is not meant to be a Carte Blanche for running amok with one's pen or keyboard, spraying ingorance, half-truth or outright lies just to increase one's readership or satisfy one's ego.

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Nope

I must disagree with the thrust of this article as it seems they have missed a significant point from the recent case. It is not necessary to remove any article identified by a complainant, merely to add a rider or update if later facts has shown it to be incorrect or misleading. This way the fulll story is available, corrections are directly attached and history is kept alive. I believe that deleting articles which people object to is a very poor choice since it is always possible that the basis of the complaint turns out later to be flawed or just plain false at which point if the article has gone then they have still won whereas if an 'audit trail' has been added they become doubly damned for the initial item plus their attempts to cover it up. Remember, the attempted covering up of indiscretions has been the downfall of more big players than the original indiscretion.

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The problem

...is that of "nuisance complaints." Plenty of commenters have said things similar to "don't publish anything libelous, then". But everyone has the right to be heard in court, and every suit defended costs a serious wedge. Get dragged into court enough times, and even if you win every case, it starts to not be worth the hassle.

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Re: Another option

This would work, but for one small problem.

British judges have never had a problem with handing out massive libel awards in respect of something published that is actually, er, true......

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Fair enough

The decision actually seems reasonable to me. In this, the internet realy IS different from a newspaper, in the sense that the information is continually being publicised.

This might be unclear in the case of information which is clearly dated, such as a news site or newsgroup, but it becomes abundantly clear when one takes into account that there are a lot of hate sites out there (most of which have the ability to persist long beyond even the ire of their author), which have more potential for libel than legitimate news sources.

@Kevin Johnston: The problem with digital information is not that it gets deleted, but that it's so damn hard to get rid of. Between news archives, backups, Google caches and the standard practice of deactivating records instead of actually deleting them, getting information deleted from the internet is actually a lot harder than retrieval.

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Boffin

There's reasonable,

and there's unreasonable. The US law is not a perfect model, and allows unjust or ambiguous situations to arise. I think that if there were clear standards as to publication date, such as a time/date stamp within the file, and a checksum on the article or storage in a relatively immutable form, then the publication date works. If there is no date on the article, then the access date is the only publication date that makes any sense whatsoever.

As an example, 7 years from now, an article that appears current saying bad things about me and is undated should be redacted. A reasonable person cannot tell when undated material was published, and has to assume it is current. In the internet world, contextual relationships (e.g. a query based upon date that retrieves an undated article) should be considered undated, as that context is often lost. However, I can see that one getting better defined, as once the document chain of custody is established in order to prove who must pay or provide relief, the query with attendant contextual information is demonstrable.

However, if people are accessing a file that is clearly past the statutes of limitations, then the publication date must be used, as to do otherwise is to ignore the historical aspect of this data in favor of a crass manipulation for reasons that were apparently not sufficient to process when it was more timely. In other words, we could have criminals rewriting our history.

I'm a big fan of centera storage and locked down pdf's for information of this nature as they significantly reduce the pain of compliance with such measures. Checksums within a dated file are really the only way to go. I like pdf's because storage in most other formats simply does not stand the test of time (changing vendor standards), or requires external verifications that can lose their contextual relationship.

Really, the law that should have been passed 10 years ago is what archival document format is legally admissible, especially within the context of news reportage (and MS Word is NOT it -- too many incompatible changes...), along with the corresponding retention parameters.

It's just like the remedy to some libel cases is a published retraction to headlines -- which finds itself on page 3 hidden in 2 point type far, far away from more salacious content on the same page. No satisfaction there in terms of actual fairness.

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Disagree

The key point in both the Brunswick case and the current one is not that the article is still archived somewhere, but that the publisher is still prepared to offer copies of this article to the public without any disclaimer.

A newspaper publisher cannot be expected to expunge all copies of a defamatory article from existence. But it is also unreasonable for it to be able to print the same article again 1 year later as if nothing had happened.

If the newspaper reprinted the article, then it would probably be a whole new libel case. But what if they had 10 thousand spare copies and put them back in the shops?

Clearly it is the act of supplying something to the public which constitutes publication, when it is written and printed is entirely irrelevant.

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Maybe

It seems that if one has the confidence in the piece to publish it in the first place, why would they not stand behind it at a later date? Perhaps it is not the lack of time limitations but the Victorian definition of libel.

I understand that time should be of the essence in suits such as this but given that the web is little more than archive cum publication and a general inability to actually differentiate between new and old material does exist. Person A can put a web page, which is libelous to person B, on a server that is mostly obscured, no links, appropriate robots file, etc. Person A leaves it there for a year plus a day and then, like magic, search engines "find" it, links are born, people "digg" it, etc. Person B has no recourse because it has been "published" for a year. Sure, it's a strained scenario but that isn't the point. There is no real way to tell that the page you are reading isn't new and the problem is often exacerbated by bad programming that automatically puts the current date on the web page. Someone searching through microfiche looking to pick a fight is one thing but finding it on Google is quite another.

All of that said, there has to be something better and less costly than courts, who are guaranteed to only make matters worse. Granted, probably not as bad as Parliament but...

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> Time limited...

I can see why publishers don't like it, but Eddy Ito brings up the point nicely. If the libelled person doesn't know the libel exists why on earth should the clock start ticking.

A reasonable person would surely say that the clock should only start ticking when the libelled person finds our about the libel.

If (as will almost always be the case) there's no way of knowing when they heard about the libel then there are two options.

One is the way the press would like, which is to start the clock ticking anyway. This is effectively the presumption that the freedom of the press is more important than the right not to be libelled by the press.

The alternate is that the clock doesn't tick unless it can be proved the libelled person knew about it. This is the presumption that the right not to be libelled is more important than the freedom of the press.

Personally no 2 gets my vote every time.

Of course if the press want to ensure the clock starts ticking straight away all they need to do is to ensure that everyone they write about gets a copy straight away... If they did it before publication they'd be really safe from libel!

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How can you take action before you know you've been libelled?!

The problem with the author's line of argument, is that you may not know that you have been libelled for a number of years, during which you may suffer damages. Not getting jobs or promotions, say, because of some alleged failing or predeliction which people talk about behind your back but assume you know all about and never mention to your face.

You should be free to sue the bastards when you eventually find out about the libel.

I'd be happy to see a time limit applied if a publisher brings the publication to your attention, and you choose to do nothing at that time. Or even if he can prove that you had read it and therefore knew what had been said. There should certainly be an obligation on the person claiming libel, to make his objections known to the publisher in a timely manner.

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Bah

This is easy to fix. First strike down the UK law in favour of one similar in flavour to the US one. Then simply provide the would-be litigant with a copy of the story at the time of publication. He then gets his day in court if he wants it within x days.

Newspapers should not be able to publish defamatory articles that the target is not aware of if the law is to truncate the time in which they may file suit, as in the USA. Word of mouth is not good enough. The publisher must make the target aware of the article in a way that can be legally verified if the litigant turns up after the expiry date.

Next up on the Stevie Bleedin' Obvious Quick Fix Agenda: Lasting peace in the Middle East.

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It's so simple ...

If it's defamation or libel the first time, then it is the second time. How ridiculous - let alone offensive - would it be to be able to publish a libel, pay 'the fine', and then be free to publish again with impunity ?

Three cheers for UK Law which got it right.

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I wonder ...

If the British libel law was twisted into the shape it was in order to suit the very important Duke of Brunswick, who no doubt knew a good few judges.

On the other hand, and just to be on the safe side, I withdraw the insinuation, and unreservedly apologise to the shades of the deceased duke, his heirs and successors, and those of the judges in question.

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Happy

This article is a spoof right?

Given that most of the British press is fiction, the current law is needed to keep defamatory fiction out of their articles.

As its red nose day, is this article a poor attempt at humour?

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Food for Thought.

While I'm no fan of mainstream media, I am equally as impressed with archaic laws such as this and stupified by those who strive to retain them!

Analysis of the timeline of this law would appear to be the following:

1. The Duke of Brunswick in 1847 learned of a libel levelled against him some 17 years previous, sent his servant to obtain a copy from the publisher and the British Museum (2nd and 3rd "publications") and successfully sued the publisher, which although this article doesn't name, was most probably The Times.

Precedent set.

2. Fast forward 101 years to 1948, when the New York Court of Appeals introduced the "Single Publication Rule" with their decision, into US Law.

Although not explicitly stated, we have to assume (for brevity) that the limitation of one year to act upon a libel was established at the same time or sometime shortly thereafter, in both US & English Law.

What we cannot assume however, is that English law acquired or instituted the Single Publication Law. If it had, this article and our comments wouldn't exist.

3. Moving forward a further 54 years, we find once more that the NYCoA ratifies the 1948 judgement, only this time they reflect upon and incorporate the Internet.

Remember, this was in 2002, a year on from 9/11, which happened in the NYCoA backyard!!

Future historians may well look back and condemn this decision but somehow I doubt it.

4. Rewind to 2001, when the British High Court ruled that every time a defamatory comment was accessed online, it constituted a "new publication".

So, no change from 154 years ago!

Remember, way back then, being "online" was coming to terms with the new fangled thing called a "News-paper".

The Duke of Brunswick didn't get 'with it' but was fortunate (and affluent) enough to send his servant to retrieve the new publications of his "online" world.

5. The Grigori Loutchansky episode only serves to prove that the "one year" rule to act upon a libel is a fallacy today in much the same way it was so many years ago.

6. Having wrote all I have, I would like you to consider the following and decide where it fits in with yester-year and today . . .

Daily Star vs. Jeffrey Archer (Libel: 1987)

Archer was alleged to have had sex with Monica Coghlan. The trial jury found in favour of Archer and awarded him half a million pounds in damages plus costs. On top of that, the Daily Star incurred costs of £1 million and sacked their editor, Lloyd Turner.

One might say, "Fair enough"! Libel claim was brought within the one year limit (which does NOT exist within English Law) and a just result awarded.

Move forward, (SLOWLY), from 1987 towards 2001 and assess this!

If J.A. hadn't brought about his claim of libel back then and waited a number of years (a bit like the Duke of Brunswick) he could have sued many more times over, for each and every "online publication" to the tune of £500,000, each and every time!!!

And then? . . . We run full tilt into reality!! Perjury and Perverting the Course of Justice.

Back in 1987 he said he would "Give the award to charity".

In 2001 he paid back the £500,000 he was awarded to the Daily Star / News of the World, along with the £1 million they incurred in court costs.

Who pays and weeps for Monica Coughlan and Lloyd Turner?

You, Me, Them??

As I said at the beginning: "While I'm no fan of mainstream media, I am equally as impressed with archaic laws such as this and stupified by those who strive to retain them!"

But I remember the victims and I have no association with any of them except my own humanity!

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Ruat coelum

I have this picture of a a lawsuit by a descendant of Amalek, suing the Sovereign (defensor fidei) for publishing and perpetuating libel against his family with every KJV Bible printed since commissioned by King James!

Fiat Justitia, ruat Coelum.

Et cvm spiritvvs Vodka

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The quality of Journalism is not straineth

in answer to zebedee:

Let us remember the immortal words of Humbert Wolfe:

.

You cannot hope to bribe or twist (thank God) the British journalist.

But seeing what the man will do

Unbribed, there's no occasion to.

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