This spring 2009, the European Court of Human Rights (ECHR) rejected the American ‘single publication rule’ in favour of the ‘multiple publication rule’ for alleged libellous articles published by the online version of UK newspaper, The Times. Two allegedly defamatory articles published in newspaper format and online by the Times in 1999 contained the following headlines: ‘Second Russian Linked to Mafia’ and ‘Trader linked to mafia boss, wife claims.’ This recent ruling, a decade after the facts took place, sets a harsh precedent in the UK with implications especially in other common law jurisdictions such as the US, Canada and Australia.
The US ‘single publication rule’ for the internet was established in the case of Firth v. The State of New York (2002) whereby a limitation period begins on the date the defamatory material appears online to the public. As with traditional forms (books, magazines, newspapers), a republication occurs only if it takes on a new form. ‘Hits’ that refresh the offending webpage by clicking online users is thus not considered a republication, because the form remains essentially the same.
Australia’s High Court, in the same year that the US set down this precedent, interpreted damages accorded by alleged defamatory online material in jurisdictional terms: Dow Jones and Company Inc. V. Gutnick [2002]. ‘The Gutnick case’ sets off a series of similar jurisdictional claims in the US and Canada. The court debated the two sides arguing differences between publication ‘from’ and publication ‘into’ as determinative of jurisdiction. With the borderless nature of the internet, jurisdictional and publication issues more complex than ever before. Publication is not simply about a single liability from the viewpoint of one jurisdiction, but from the perspective of being liable from any jurisdiction – anywhere potentially defamatory online publication can be viewed.
Canadian courts, however, have largely taken influence from the UK and Australia. To date, the Supreme Court of Canada has considered a number of online-based defamation cases put forth by freedom of expression lawyer-activist, Richard Warman, battling anti-Semitism on the internet as a violation of the Canadian Human Rights Act.
In another recent case, Crookes v. Wikimedia Foundation Inc. [2008], the Supreme Court of British Columbia ruled that hyper-linking to defamatory material is not considered republication, thereby limiting liability.
These internet defamation cases reveal a need to catch up to the pace of technological advancements and its uses, while maintaining high standards of online freedom of expression and journalistic ethics to stick to the truth even online. Simply applying traditional defamation laws set hundreds of years ago before the internet was a consideration does not appear to do justice to online freedom of expression.
The Times case’ tell us that indefinite liability is a risk that online publishers assume, leading to further questions about freedom of expression. Although ‘The Times’ has been reported to appeal this decision, it has not yet materialized. As suits against bloggers are on the rise, and more individuals are publishing actively online, other jurisdictions may have to take a lead role in polishing this uneven area of law.
Tiffany Wong is a visiting student at Oxford University’s Centre for Socio-Legal Studies and J.D. candidate at Osgoode Hall Law School (Toronto, Canada) with international work experience in journalism.
