In a recent case* the European Court of Human Rights (ECHR) dismissed a claim that the rule under UK law, whereby each time material is downloaded from the internet a new cause of action in libel proceedings accrues, constitutes an unjustifiable and disproportionate restriction on the right to freedom of expression. The rule, known as "the multiple publication rule" also applies in Ireland.
The ECHR has ruled that where a newspaper published, in its written press, an allegedly defamatory article which, during the libel action, was available to readers on the newspaper's website, it was not a disproportionate interference with the newspaper's right to freedom of expression to require that the newspaper publish an appropriate qualification to the version of the article contained in the internet archive.
In both Ireland and England, each single publication of a defamatory statement will ground a libel action, whether or not the publications emanate from one or multiple publishers. In the context of the internet, this means a new cause of action accrues each time the material containing the defamatory statement is accessed. Despite the fact that "the multiple publication rule" places onerous obligations on publishers, particularly newspapers with online news archives, by exposing them to indefinite liability, the ECHR has upheld the rule as being compatible with Article 10 of the European Convention on Human Rights.
An examination of the Defamation Bill indicates that Ireland, intends to follow the US, and adopt a single publication rule. The Defamation Bill (section 10(1)), as passed by Seanad Eireann, provides that a plaintiff should have one cause of action only in respect of a multiple publication. However the definition of "multiple publication" under the Bill is arguably restrictive. It applies to "...publication by a person of the same defamatory statement to 2 or more persons (other than the person in respect of whom the statement was made) whether contemporaneously or not". Accordingly, if the provision is retained in the Bill as enacted, a claimant would only be able to take one action against a newspaper for publishing a defamatory statement, irrespective of any reprint of the newspaper or how often the archived material containing the defamatory statement was accessed, and thus the defamation republished. The Defamation Bill has been awaiting Committee Stage of Dail Eireann since 14 May 2008.
It seems however, that the provision in the Bill will not prevent a person taking more than one action where the publication emanates from multiple publishers, including the vendors of the publication that contains the defamatory statement. In addition the Bill confers discretion on the court to grant leave to a person to take more than one defamation action in respect of a multiple publication where it considers that the interests of justice so require. Therefore it is unclear how effective the new provision will be in reducing the indefinite liability of online publications to libel proceedings.
Comment: A six year limitation period currently exists in Ireland to bring an action for a written libellous article (3 years for slander, both to be amended to one year under the Defamation Bill). However, in respect of online publication of a defamatory statement, the limitation period starts again each time the article containing the defamatory statement is accessed. This leads to the peculiar situation that an online publisher of a defamatory statement is exposed to indefinite liability.
It is noteworthy that the Judge Garlicki at the ECHR remarked that: "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 under Article 10". Due to the circumstances of the case, which involved two libel actions, brought contemporaneously, the ECHR did not consider in detail the applicant's allegation the multiple publication rule, in the context of the internet, had a "chilling effect" upon the willingness of newspapers to provide internet archives and would thus limit their freedom of expression. In light of Judge Garliki's comment, it may well be the case that in the future a stale claim brought many years after the event may be recognised as contravening the right to press freedom under Article 10.