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ECHR upholds ongoing defamation liability for internet

By Steven | March 12, 2009

One of the rules of defamation law is that each separate publication of something that’s defamatory gives rise to separate liability. So each time someone downloads a defamatory article, there’s a fresh publication and a new potential lawsuit. You can see how this might give rise to some headaches for news archives.

However, an attempt to convince the European Court of Human Rights that this ongoing liability for archived material is a disproportionate restriction on free speech has failed. The ECHR noted that internet archives are useful and important, but indicated that they may be controlled more strictly than the initial news stories, since publication is usually more pressing when they are first published. In other words, if you’re involved in archiving, you don’t get cut as much slack as those in the more urgent business of news gathering.

Of course, many news organisations do both. This case tells them that they probably can’t just dump the stories in the archives and expect to receive the same protection that might be received for the initial publication – particularly when they are alerted to a problem with the story.

The Court said it’s not unduly onerous to expect the operators of such archives to attach a note to archived material alerting readers that it is subject to a defamation suit – this will usually be sufficient to prevent liability. The judges criticised the Times for the length of time the paper took to attach a note to the archived news story.

The court noted that the Times was sued pretty promptly for both the initial defamation in the hard copy of the paper and the later (identical) defamation-by-download, so it hadn’t been prejudiced by delay. But it added:

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…

So there may yet be limits to ongoing liability for archives.

Topics: Defamation, Internet issues | 9 Comments »

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