Out-Law.com reports today that the European Court of Human Rights upheld an English defamation case in which the publication had been online for more than the usual one-year limitation period for defamation suits. [Case of Times Newspapers Ltd (Nos. 1 And 2) v. The United Kingdom]
Though the limitation period runs from publication, each time a web site is accessed is considered a new publication. Thus the limitation period never expires for an online publication.
Does this make sense? (Out-law.com, a publication of the Pinsents law firm in the UK, does not think so.)
On the other hand, print materials tend to grow out of date and inaccessible, particularly periodicals. The Internet never forgets, and with search engines and the Internet Archive, it is pretty easy to resurrect an ancient libel.
I presume Canadian common law is the same as in England on this point. Is that right? (Canadian limitation periods for libel vary from six months to a couple of years, or more. But that wouldn’t matter for online defamation if the periods are restarted every time someone looks at the defamatory text.) American law applies its first publication rule to the Internet as well, so something could be online forever but the person defamed can be statute-barred from any legal remedy.
Views?
There is a good discussion of the US and Commonwealth positions in Carter v. B.C. Federation of Foster Parents Assn., 2005 BCCA 398.
Mr. Justice Hall decides that policy reasons favour following the UK/Commonwealth rule: "…I do not consider that it would be appropriate for this Court to adopt the American rule over the rule that seems to be generally accepted throughout the Commonwealth; namely, that each publication of a libel gives a fresh cause of action." The policy reason is the societal interest in not barring a person's claim while the defamatory publication is still available online. That seems reasonable to me.
It is clearly a policy decision rather than a linguistic one to decide that a text on an internet site is published each time someone looks at it, though 'publication' in defamation law means communicate to anyone, even a single person, beyond the target of the defamation.
It is not a policy decision that is made about books. Each time someone buys a book with defamation in it, or takes it out of the library, the limitation period does not start afresh.
I could understand an argument that the Internet is more accessible than books in stores (for a while, except for the most successful) or libraries. At least courts and commentators should be clear about what they are doing.
How does a 'publisher' of defamation online stop publishing, once it is brought to his/her/its attention that the defamation should not have been published (by whatever means)? One can take a document off one's own web site, or clean it up, but information (however false) tends to spread. One cannot control mirror sites or others who copy the nastiness.
Would it make sense to have the 'permanent publication' rule apply only to more or less official sources of the defamation, and not for everywhere it turns up? Or would that protection expose the person defamed to too much risk?
It's a good question with two parts neither of which I can find settled law on.
First, is the net a "publication" or a "broadcast"? Bahlieda v. Santa, (2003), 233 D.L.R. (4th) 382; 68 O.R. (3d) 115; 20 C.C.L.T. (3d) 297; 28 C.P.R. (4th) Ont. C.A. per McMurtry, C.J.O., Goudge J.A. and Gillese J.A.
suggests that it is a broadcast with limitation periods appropriate to such. But this is a 2003 decision and I've not the time to update it.
Second, and again looking at Ontario, s. 5 starts the clock when the plaintiff becomes aware of a defamatory statement in a "newspaper" or a "broadcast". The clock runs for six weeks. I wonder if "becomes aware" may be operative regardless of the determination as to broadcast.
There is also the interesting question of whether an article posted in British Columbia to a website hosted on a server in Denmark but read in Ontario is either a "newspaper" or "broadcast" under the Act.
If the period "starts afresh" we run into some very real problems. The most basic of these is the existence of "Google cache". Essentially, Google keeps a copy of virtually everything which is published on even lightly trafficked sites so even if a person were to pull down a defamatory statement it would persist in Google cache where it might be found by search several years after the initial take down. As well, a defamatory statement might well make it into search results themselves notwithstanding the removal of the initial material. Plus, and this makes it all the more interesting, individual ISPs often keep copies of frequently searched pages on their own servers.