The UK government is consulting on whether there needs to be changes in the UK’s civil law on defamation in particular in relation to the ‘multiple publication’ rule, established in 1849 in the Duke of Brunswick v Harmer.

Currently each publication of defamatory material gives rise to a separate cause of action which is subject to its own limitation period (’multiple publication’ rule).

Whilst the Law Society recommended that the government look possible changes to the law on this issue in 2002, the government has decided now only 7 years later, that it should address the issue. Why now? According to the consultation the increased proliferation on online archives of newspapers, blogs, etc, now means that each hit on a webpage constitutes the creation of a new publication in the eyes on the current law. This means that publishers are continually potentially liable for any defamatory material published by them and accessed by others long after initial publication and in some cases where proceeding were not brought in relation to that ‘initial’ publication.

The government’s view is that there is little evidence that the current law is problematic, and that if the multiple publication rule were retained, the limitation period should not be extended from the current period of one year from the date of publication (with discretion to extend). They also think the case for extending the limitation period is weak if a single publication rule were to be introduced. They see the main discussion point as being whether a ‘date of publication’ or ‘date of knowledge’ approach should be used, and whether the latter should be accompanied by a ten year long-stop from the date of publication.

Broadly, the government sees the options as:
Option 1 - Introduce a Single Publication Rule but retain the existing Limitation Period ;
Option 2 - Introduce a Single Publication Rule and amend the existing Limitation Period to one year from the date of knowledge ;
Option 3 - To amend the Defamation Act 1996 to prevent actions in relation to publications on online archives outside the one year Limitation Period unless the publisher refuses to update the electronic version, on request, with a reasonable letter or statement by the claimant.

If you are thinking of responding to the consulation, the government wants your views on the following questions:

1. Taking into account the arguments set out above, do you consider in principle that the multiple publication rule should be retained? If not, should a single publication rule be introduced? Please give reasons for your answers.

2. If the multiple publication rule were to be retained should there be an obligation to place a notice on an archive once the person responsible has been notified that the material is subject to defamation proceedings?

3. Do you agree that if a single publication rule were to be introduced, it should apply to all defamation proceedings, not just those relating to online publications?

4. If a single publication rule were introduced,

a) should it be made obligatory to remove or amend material held in other formats under the control of the same publisher in the event of a successful defamation action against the original publication of the material?
b) should there be a provision that, where defamatory material is re-transmitted in a new format, the single publication rule would only protect the previous publisher and not the publisher of the new article?
c) if neither of these are considered appropriate, how could claimants’ interests be protected?
d) should the existing ‘voluntary’ obligations to correct inaccurate and misleading material be strengthened? If so, how should this be done? Please give reasons for your answers

5. a) If a single publication rule were introduced, do you consider that the approach taken in the United States in respect of what constitutes a new publication of hard copy material would be workable? If not, what changes should be made?
b) Should online content that has been modified be regarded as a new publication?
c) Are there any other issues that would need to be resolved in establishing a single publication rule? Please give reasons for your answers.

6. As an alternative to introducing a single publication rule, do you consider that the Defamation Act 1996 should be amended to extend the defence of qualified privilege to publications on online archives outside the one year limitation period for the initial publication, unless the publisher refuses or neglects to update the electronic version, on request, with a reasonable letter or statement by the claimant by way of explanation or contradiction? Please give reasons for your answer.

7. Do you agree that if the multiple publication rule is retained, the limitation
period should remain at one year from the date of publication (with discretion to extend)? If not, what limitation period would be appropriate and why?

8. a) If a single publication rule were introduced, should the limitation period of one year run from the date of publication (with discretion to extend) or the date of knowledge (without discretion to extend)? If the latter, should there also be a ten year long-stop from the date of publication?
b) If you consider that an
alternative approach would be appropriate, what should this be and why?

Comments are requested by 16 December 2009