Libel Tourism: Will Free Speech Return to the United Kingdom?
[The following article, authored by Michael Skrein and Tom Webley, who are both resident in our London office, reviews the current (and future) state of the UK’s libel multiple publication rule. It was first published as “In Focus. Libel Tourism,” in Legal Strategy Review, Issue 5 (Winter 2009/10), and Legal Bytes gratefully acknowledges and appreciates their permission to re-publish it.]
Media organisations, publishers, journalists and human rights lawyers have, for many years, argued that the UK’s libel multiple publication rule is incompatible with free speech in the modern digital age. This ancient rule renders each publication of defamatory material liable to be sued on as a separate cause of action. That means, for example, that if material remains available online in archives or live websites, the threat of proceedings being issued will hang over the head of the publisher indefinitely.
The limitation periods in England and Wales for defamation is one year from publication. However, under the multiple publication rule, each ‘hit’ on a website is treated as a new publication and can lead to a claim being brought within that time frame. The rule dates back to a case in 1849 which arose when the Duke of Brunswick purchased a copy of a newspaper published 17 years previously. He then sued for defamation over its contents. The new purchase was ruled to equate to a new publication, thereby allowing him to sue. The rule has been applied to defamation cases in England and Wales ever since.
A Time For Change?
Unsurprisingly, many lawyers in England and Wales have been arguing that the rule is completely inappropriate and a dangerous anachronism. Many overseas lawyers greet the existence of the rule with disbelief. Nearly 100 years after the Duke of Brunswick case, in 1948, the New York appellate court decided that the multiple publication rule had no place in an American society with mass publication and nationwide distribution, and it replaced the rule with a single publication regime.
The UK Ministry of Justice has recently published a consultation paper on the topic. It agrees that the multiple publication rule has failed to keep pace with the digital age, conceding that defending a claim becomes increasingly difficult as time passes.
However, it says that this difficulty must be balanced against the need for a claimant to be given suitable redress for damage to reputation. The paper suggests implementing a single publication rule in which the limitation period runs from the date on which the claimant discovers the defamatory material (if this is within 10 years of initial publication) and/or to have a defence of qualified privilege for archived material (this defence would be defeated if the defendant failed to remove the material having received a reasonable request to do so).
Implementing a single publication rule in England and Wales would be good news for publishers operating in those countries, and others worldwide would also breathe a sigh of relief as it would reduce the incidence of ‘libel tourism’ in the jurisdictions. For many years, overseas claimants have flocked to the courts to bring defamation actions. As there is no equivalent to the U.S. First Amendment, defendants face several additional legal hurdles, and they may have to pay damages and huge legal fees if they lose.
The consultation closed on 16 December 2009 and the Ministry of Justice will now consider the responses. Perhaps soon English law will finally lay to rest the spirit of the Duke of Brunswick.
If you need to know, you need to contact Michael Skrein, a partner, and Tom Webley, an associate, both in our London office. Of course, you can always contact me, Joseph I. (“Joe”) Rosenbaum - or your favorite Reed Smith attorney - who will be more than happy to help or coordinate getting your legal needs taken care of.
