Online defamation – changes afoot in UK law?

In August John McGonagle wrote about the case of an Edinburgh based property developer who won a defamation case in the English High Court against the publishers of Dubai newspaper “Gulf News”.  See “Why not Dubai?” for a reminder.

The (allegedly) defamed are keen to try to sue in the UK it would seem and the UK courts are equally cooperative in finding that they have jurisdiction. However, if changes contemplated by the UK Government become law, the UK could start to look like a less attractive forum for defamation proceedings.

Last month the Government issued a consultation paper on defamation and the internet, seeking views on how the law might be changed, including by replacing the UK’s “multiple publication rule” with a “single publication rule”, as in the US.

In the UK at present, each publication of defamatory material gives rise to a separate cause of action. The limitation period therefore recommences with each publication. Applied to content disseminated by the internet, this means that a new cause of action, with its own limitation period (of one year under English law and three years under Scots law), arises on each occasion that someone accesses that content online.

The US, in contrast, has abandoned the multiple publication rule in favour of a single publication model. This means a single cause of action triggered by initial publication of the defamatory content. In other words then the window of liability for any defamation constituted by the dissemination of that content is much more restricted.

Clearly, the UK’s continued application of the multiple publication rule does give rise to some interesting issues as to the balance which the law of defamation should strike between freedom of expression and the rights of the individual. After all, the rule was established in 1849 when the Duke of Brunswick successfully sued the publisher of the Weekly Dispatch for defamation (more specifically “fasely, wickedly and maliciously printing and publishing” allegations of “acts of oppression and outrage” on the part of the Duke), founding his action on the purchase of a back copy of an edition of the newspaper originally published in 1830. The world of publishing has changed a lot since then.

The Government’s consultation exercise runs until 16 December. The consultation paper is worthwhile reading for anyone interested in the policy considerations which influence the law of defamation, and obviously of particular practical significance to publishers of online archives.

Martin English (trainee solicitor) and Eleanor Peterkin

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