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.