Internet Libel: Sympathy for the Devil

March 13, 2009

The European Court of Human Rights gave judgment on 10 March in {i}Times Newspapers Ltd (Nos. 1 and 2) v The United Kingdom{/i} (Applications 3002/03 and 23676/03). The Court won’t require the UK to have a single publication rule like the one in the USA. The effect is that anyone with an online archive can be hauled before the courts at some far distant date in the future for defamatory material contained in that archive.

As the custodian of an online archive going back to 1998, my immediate reaction was to agree with those condemning the decision. There is an excellent editorial from Struan Robertson on {Out-Law:}, and I can readily sympathise with, and identify with, the predicament he describes. But at least he had an option – remove the archived material or fight. Those who are genuinely defamed by archived material might have no options at all if the single publication rule were to be adopted.

Consider Jeb Ezekiel, who has worked as a cleaner for two years while studying and leaves after a series of rows with his employer. His employer is a blogger and names Jeb on his blog, accusing him of being a thief, a dangerous mad man or whatever other defamatory trait you like. Jeb has better things to do than worry about some idiot’s blog. But regrettably, when applying for a job as an accountant two years later, prospective employers do read it – they Google his name and encounter the blog entry. Jeb never seems to succeed with his job applications and one day discovers why. Would he be left without a remedy? Should such defamatory material stay available until he retires?

On balance, I think the Strasbourg Court has got the balance right. I have more sympathy with Jeb than with The Times, and if that involves occasionally sympathising with the Devil, so be it. The archive at The Times has real commercial value and they must accept the risks that flow from its ongoing publication.

I might add one practical tip. If you publish online, ensure that whatever you publish has a date readily available. Describing my friend Jeb as a practising homosexual when it’s true, he’s out and working as an interior designer is entirely without risk. But if the piece lacks a date, and he has since embraced celibacy and the priesthood, it is a little dangerous.