English libel laws don't breach freedom of expression, court says

10 March 2009

The requirement in English law for the internet versions of newspaper articles found to have been libellous to carry suitable qualification did not infringe freedom of expression under Article 10 ECHR, the European Court of Human Rights has ruled.

The court was ruling in the case brought by The Times following a Court of Appeal decision in December 2001 (cases 3002/03 and 2367/03).

The newspaper had published two articles in September and October 1999 reporting on a large-scale money laundering scheme and the alleged involvement of a Russian whose name was given in full in the paper at the time but was latterly only cited as GL.

GL brought libel proceedings in December 1999 in respect of the printed articles. Meanwhile, the articles had remained on The Times’ website and GL brought a second libel claim in 2000 in relation to the internet versions of these articles.

The Times then added a notice to both articles on its website indicating they were subject to libel litigation.

The European court said that the Court of Appeal had not suggested the articles should be removed from the website and that the requirement to insert a notice to content that was known to be defamatory would be sufficient to “remove any sting from the material”.

The Strasbourg judges concluded that “the requirement to publish an appropriate qualification to an article contained in an internet archive, where it has been brought to the notice of the newspaper that a libel action has been initiated in respect of that same article published in the written press, [did not] constitute a disproportionate interference with the right to freedom of expression”.

The Times also sought clarification of the limitation period applicable to internet libel.

Under the current rule, newspapers which maintained an internet archive were exposed to ceaseless liability for re-publication of the defamatory material, The Times argued, a situation which could have a ‘chilling effect’ on newspapers’ willingness to provide an online archive.

Instead, the newspaper said, there should only be one limitation period for print and online material, starting from the date when the material was first published in hard copy or posted on the internet.

The court said that in the circumstances it was not necessary to consider the point but commented that “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 under Article 10”.