Wednesday, March 11, 2009

Times Newspapers v UK: European Court of Human Rights

The Times Newspaper group has lost its challenge against UK defamation law in the European Court of Human Rights. The Guardian article is a reasonable summary of the outcome in The Times Newspapers Ltd. (Nos. 1 and 2.) v. The United Kingdom, but fails to capture the subtleties of the decision. Not surprisingly the journalist and "media lawyers" and "experts" "condemned" the ruling though we're not told who the experts or media lawyers are. I read it as being very carefully and narrowly constrained to the facts of this particular case, so don't expect it to have a great deal of wider significance.

The Times published two articles in 1999 linking a Russian born businessman with the Russian mafia. He sued for libel and eventually won in March 2001. Significantly he also started a second libel suit on 6 December 2000 whilst the first was still ongoing, based on continued publication of the the articles without qualification in newspaper's internet archive. The Times left these articles in the archive without such qualification until 23 December 2000 at which point a notification was attached to each noting they were subject to a defamation lawsuit:
"“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.”
(G.L. is the Russian businessman)

The Times argued unsuccessfully through the UK courts that there should be a single publication rule - as exists in the US - so they could avoid be sued multiple times over the same article. Without such a rule they couldn't maintain an effective archive and it was a significant burden on the right to free expression. The significant parts of the ECHR judgment against the Times, in my view, were:
"26. 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 ...”

27. 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... he 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...

47. 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.

48. 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.

49. 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.

50. There has accordingly been no violation of Article 10 of the Convention."

So because the Times was not even required to remove the articles from its archive during the timescale of the court proceedings, merely add a notice to each saying it was the subject of a libel case, it was not a big deal. And since they demonstrated how easy it was by eventually adding the qualification to the articles a few weeks after the second libel suit was brought, the newspaper's claims about it being an unnecessary burden were not credible according to the court. But - and this is the significant point that effectively restricts the decision to the narrow facts of the case - the court makes the point at the same time as finding against the newspaper that:
"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."
So the loud claims doing the rounds about the judgment undermining the freedom of the press can be taken with a pinch of salt. The Guardian report suggests that "experts" expect the Times to appeal the decision to the Court's Grand Chamber. I'm not a big fan of the UK's defamation laws but given the facts here they'd be better off taking the loss and not pouring any more money into m'learned friends pockets, at least in relation to the specifics of this case.

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