The Government has launched a consultation on whether changes should be made to the multiple publication rule in defamation actions.
The effect of the multiple publication rule is that each publication of defamatory material gives rise to a separate cause of action which is subject to its own limitation period (of one year). This means that multiple legal actions can be brought in respect of the same defamatory material and that publishers can be liable many times over.
The multiple publication rule creates particular difficulties in relation to online material. Each hit amounts to a new publication in respect of which a fresh cause of action will lie. This is particularly problematic in relation to material held in an online archive. A publisher can find itself liable for defamation when the archive material is accessed even though this is long after the initial publication and even if proceedings have already been brought in relation to that initial publication.
The Government proposes changing the law so that a single publication rule would apply. This would mean that the limitation period would begin to run from the date of initial publication and that only one cause of action would lie in respect of defamatory material, even if copies of it continue to be made and re-published years later. The Government is also considering a possible intermediate option which is retaining the multiple publication rule but extending the defence of qualified privilege to online archives, meaning that no action would lie for publication via an online archive after one year has passed from the initial publication. The availability of this defence would be subject to the condition that the publisher must update its online archive to include a reasonable letter or statement by the person defamed by way of explanation or contradiction.
If a single publication rule is the preferred option, the Government also proposes extending the limitation period for defamation actions to three years. The Government is consulting on whether this extended period should run, as now, from the date of publication of the material or changed to run from the date of knowledge of the person defamed, with a ten year long stop from publication to prevent the publisher being exposed to unlimited liability. The Government also seeks views on whether the courts should continue to have discretion to extend the limitation period (be it one or three years) if it is equitable to do so.
Any changes made to the law would apply to defamation both online and offline.
The consultation closes on 16 December.