On 8 September 1999 and on 14 October 1999 The Times published two articles in the printed version of the newspaper alleging the involvement of G.L. in money-laundering through the Bank of New York. On 6 December 1999, G.L. brought proceedings against the applicant for libel in respect of the two articles printed in the newspaper. The applicant relied on the defence of qualified privilege (Reynolds v Times Newspapers [2001] 2 AC 127). Given that the applicant had stored the two articles in their archive online, G.L. brought a second action on 6 December 2000 for libel in relation to the continuing Internet publication of the articles. On 23 December 2000, the applicant added a preface specifying on each of the two archived publications that an action in defamation was being brought against them.

On 20 March 2001 the High Court held that the defendants had no reasonable grounds for contending that they had a duty to publish the articles on the Internet after they had lodged their defence in the first action, and thus the defence of qualified privilege in relation to the second action was struck out.

The defendants also argued that only the first publication of an article posted on the Internet should give rise to a cause of action in defamation and not any subsequent downloads by Internet readers. Accordingly, they submitted, the second action had been commenced after the limitation period for bringing libel proceedings had expired. The court disagreed, holding that, in the context of the Internet, the common law rule according to which each publication of a defamatory statement gave rise to a separate cause of action meant that a new cause of action accrued every time the defamatory material was accessed (“the Internet publication rule”).

The defendants appealed to the Court of Appeal, arguing that the application of the common law rule to Internet publications gave rise to ceaseless liability of newspapers and could ultimately have a chilling effect on their readiness to provide Internet archives and thus limit their freedom of expression. The court, dismissing the appeal, stated that the maintenance of archives was a relatively small aspect of the freedom of expression, and that it need not be inhibited by the law of defamation as the publication of a notice warning readers against treating potentially defamatory material as truth would normally remove any sting from the material. The House of Lords refused leave to appeal.

Claim:
The applicants complained in the ECtHR that the Internet publication rule, i.e. the rule according to which a new cause of action accrued every time the defamatory material was accessed on the internet, constituted an unjustifiable and disproportionate restriction of its right to freedom of expression under Article 10 of the Convention.

No Violation of Article 10 was found:
The Court declared that the complaint was admissible, that the breach was prescribed by law and had a legitimate aim in that it protected the rights and reputation of others.

The Court went on to examine whether the interference was necessary in a democratic society. It emphasized the importance of the vital role of the press as ‘public watchdog’ but reminded that the press did not enjoy an unrestricted freedom of expression. In particular, it observed that the question of the margin of appreciation that each contracting State enjoyed in regulating its press was relevant.

The Court recognized the vital role of the press in maintaining and making available to the public internet archives. However it noted that the margin of appreciation afforded to States in striking the balance between competing rights was likely to be greater for news archived, than for news reporting current affairs. In particular, the duty of the press to act in accordance with the principles of responsible journalism was likely to be more stringent in the absence of any urgency in publishing the material. It added that it was, in principle, for contracting States, exercising their margin of appreciation, to set an appropriate limitation period and to provide for any exception to the prescribed limitation period.

The Court considered it noteworthy that, although libel proceedings were initiated, the applicant did not add any qualification to the articles in its Internet archive until later. The Court also recalled that the Court of Appeal did not suggest that potentially defamatory articles should be removed from archives altogether, but instead that the simple attachment of a notice to archived copies would “normally remove any sting from the material”.

The Court considered it unnecessary to examine the potential chilling effect of the Internet publication rule. It nonetheless observed that, in the present case, the two libel actions related to the same articles and both had been commenced within 15 months of the initial publication of the articles. The applicant’s ability to defend itself effectively was therefore not hindered by the passage of time. Accordingly, the problems linked to ceaseless liability did not arise. However, the Court emphasised that while individuals who are defamed must have a real opportunity to defend their reputations, libel proceedings brought against a newspaper after too long a period might well give rise to a disproportionate interference with the freedom of the press under Article 10 of the Convention.

Accordingly, there was held to be no violation of Article 10 of the Convention.

Note:
It is noteworthy to add that the courts of the United States of America have instead chosen to apply the “single publication rule” according to which the limitation period starts when the report is first uploaded onto the website and does not begin anew each time the website version of the report is accessed by a user. This rule seems arguably more adequate to modern circumstances. But it is surely for the UK courts and not the ECtHR to change it.