back to article Defamation expert: New '1 year after publication' rule means EASY LIFE for UK libel judges

Media law expert Ian Birdsey of Pinsent Masons, the law firm behind Out-Law.com, said that newspaper and magazine publishers, as well as businesses that provide solutions for digitally archiving content, would welcome the introduction of a "single publication rule" as part of a new Defamation Act which came into force on 1 …

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  1. Pete 2 Silver badge

    A dying breed

    In practice, defamation (and libel) laws are pointless - unless you have millions to chuck about and actively want the publicity of taking a newspaper to court. For most published material, the internet is all that matters. In that case, a person only needs to get a lawyer to write a letter to the website's hoster and pretty much any article will be off the site, pronto.

  2. Graham Marsden
    Thumb Up

    "corrections and clarifications"

    "However, these provisions could see the control editors have over how and where they appear in their print publications or online platforms being taken away from them."

    So we might see an end to them printing a story with huge lurid front page headlines, then, when it's shown to be false, publishing a correction in a tiny font at the bottom of page 27...

    1. lglethal Silver badge
      Thumb Up

      Re: "corrections and clarifications"

      I've never understood how the current system was allowed to stand anyway. If a newspaper has spent all of Page 1, and a substantial part of page 3 (minus the Page 3 girl of course) defaming someone, they should always have had to spend the exact same amount of space (i.e. Page 1, plus a substantial part of page 3 (but naturally, not getting in the way of the Page 3 girl!)) apologising for that defamation.

      It might just encourage some more honesty in reporting, or at the very least some additional fact checking!

      1. Neil Charles

        Re: "corrections and clarifications"

        I've always thought it would be a good idea not to force the paper to apologise using its own choice of language, in its own choice of location, but to give the equivalent space to whoever was defamed as a 'right to reply'.

        Tabloids would think much harder about what they wrote if the consequences of a front page defamation were losing a front page to whoever you wronged, where they could write whatever they like.

        1. Intractable Potsherd Silver badge

          Re: "corrections and clarifications" @ Neil Charles

          That is a very elegant suggestion! A sensible form of retributive justice :-)

  3. Anonymous Coward
    Anonymous Coward

    possible loophole

    It may be possible for an intentional defamation to be published on a very obscure unlinked website a year before the publisher of same article intends to republish it somewhere more mainstream. The original obscure location of the article is unlikely to be noticed. The reposting of the identical article that does the intended damage to the reputation of the victim will then be noticed when it is too late for the victim to do anything about it.

    1. Yet Another Anonymous coward Silver badge

      Re: possible loophole

      For most defamation cases there wouldn't be much point after a year.

      If I want to say something nasty about the latest pop-idol-big-brother-loser then a year later nobody is going to give a damn.

      It would take a particularly deliberate attack to say something about a public figure in the Arbroath Anglers Almanac just so you can repeat it in the Sun a year later. It would also give the victim a good claim that it was done maliciously.

  4. teebie

    Bad fix

    "[if republished] the date of original publication would continue to stand"

    The old law did need fixing - as things stood if someone looked at a story again it counted as being replublished, which was clearly in[correct|sane].

    However, under the new law, if you (*) manage to defame someone without them noticing for a year you can then defame them any time you want, as long as you say the same thing.

    It took me about a minute to see that loophole, and I made at least 3 typos writing this little thing. How could the professional drafters have done so badly?

    (*), 'you' in this context should not be read in the traditional senses of 'you, the individual' or 'one', but rather 'Paul Dacre'

    1. ratfox

      Re: Bad fix

      The assumption is probably that if it takes you over a year to notice, it's not important enough to bother the legal system about it.

      1. Anonymous Coward
        Anonymous Coward

        Re: Bad fix

        Wonder if a short comment "just like X did" would count as a new defamation. When the text of alleged defamation is always identical, but the alleged offence itself (i.e. context provided by other posters) is different each time.

        Anonymous in case anyone was tempted to test that on me :-o

    2. Anonymous Coward
      Anonymous Coward

      Re: Bad fix

      Cool!

      The Daily Fail could set up a defame-o-tron script that cooks up every imaginable insult/accusation/lie about $celeb.

      Randomly scatter said 'stories' on obscure parts of the web, wait a year, then print, print away and watch the money roll in.

      :-)

      OK so it's a stupid idea, but no more stupid than the other methods they use to sell newspapers...

      1. cortland

        Re: Bad fix

        --- that cooks up every imaginable insult/accusation/lie about $celeb.---

        Yes, but calling someone an alien might *improve* his reputation.

  5. Tromos

    It would appear that you can get away with serious defamation if you are prepared to bide your time. Publish publicly but very low key (e.g. small print ad in the South Turkmenistan Herald) then follow up a year later with the same text up to billboard size on every street corner.

    1. Intractable Potsherd Silver badge

      As was said above, this action would be a fairly clear indicator of malice aforethought, and the courts would find a way to deal with it.

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  7. Vimes

    The new Act enables individuals or businesses to lodge claims, but only where they can show that defamation of them has caused, or is likely to cause, serious harm to their reputation. Businesses can only be said to have suffered 'serious harm' if they can demonstrate that they have experienced, or are likely to experience "serious financial loss" as a result of defamatory comments.

    I smell the stench of civil servants desperate to minimise their workload all over this one. It was the CPS after all that accepted the excuse of 'no criminal intent' in regards to Phorm trials undertaken by BT (the bullshit meter just exploded on that one considering the lengths BT went to in order to conceal the trials) and it was the various police forces around the country that refused to take on other potentially illegal interception by the telcos. Also note the resistance the police put up over claims of phone hacking before being forced into taking action.

    Also I wonder who gets to determine what constitutes 'serious' harm?

    "In the main, the new 'serious harm' threshold should help discourage trivial or vexatious claims from being brought before the courts, or at the very least ensure they are eliminated at an early stage in proceedings," Birdsey said.

    Umm... Trivial or not - and again who gets to determine this? - if an offense has been committed should those responsible not be punished?

    It's amazing the lengths civil and crown servants will go to in order to avoid actually having to do their job...

    1. The Dude
      Flame

      defamation published by government

      You got it absolutely right that government servants will play every dirty trick in the book to avoid responsibility for defamatory publications. The government of Canada published a defamatory report on its website, supposedly some sort of "policy research" libelling a whole list of people and then claimed it was fair comment. There is enough wiggle room in the defamation laws that they were able to get away with it too. Makes me wonder how much pull the government already has within the courts, to the point that rules are for other people...

  8. Anonymous Coward
    Anonymous Coward

    Crime and punishment

    "if an offense has been committed should those responsible not be punished?"

    We're not talking about criminal law here so nobody has to be "punished". The offender compensates the victim for the damage caused. Note that you can defame someone accidentally even when being very careful, just as you can be responsible for a road accident even when being very careful (though if you are both careful and competent it shouldn't happen very often).

    1. Vimes

      Re: Crime and punishment

      Perhaps 'punished' was the wrong way of phrasing it. Maybe 'face the consequences of their actions' would be better?

      In any case the care taken to avoid committing an offense in the first place should IMO be taken into account. I don't think anybody would disagree with that.

      The problem that I have is this: placing a lower limit below which cases will automatically be dismissed in regards to damage done is a very risky course of action - again IMO - regardless of the care taken in avoiding defamation. This is especially the case when terms like 'serious' are vague at best (and can be interpreted in more than one way depending on who is making the definition).

      It's also easy to imagine a situation where ordinary members of the public suddenly find it much more difficult to make claims of defamation as a result of this change, whilst large organisations and well known personalities will continue to have a smoother ride.

  9. the spectacularly refined chap

    What about HOW it is published?

    What if the original publication was very low key, and republication is to a much wider audience?

    Consider, for example, that many PhD theses are subsequently published as books, either after another redraft or possibly even verbatim. The original theses would surely count as being published given that it will be in the library of the relevant university and in the UK at least all PhD theses are archived online. It may only be accessed by a handful of times by academics but it's published and available for all to see. The fact the libeled person isn't aware of it and hasn't suffered any harm as yet doesn't alter that.

    However, the publishers have hold of it and take 18 months to spit it out in book form. It gets featured on Richard & Judy or whatever and becomes a bestseller. The libeled person becomes aware of the false allegations but is time barred because of the original "publication" that everyone ignored.

    1. Intractable Potsherd Silver badge

      Re: What about HOW it is published?

      Do you seriously think that many (if any) PhD theses contain defamatory material? It would be a pretty poor supervisor and assessors that allowed that to happen, since evidence of assertions would be needed, and evidence undermines defamation claims.

      1. Anonymous Coward
        Anonymous Coward

        Re: What about HOW it is published?

        You've not heard those stories about the guy who puts a sentence in his thesis saying "the examiner who points out this sentence to me will receive a bottle of whisky" and then turns up at the viva carrying a bottle of whisky ... which nobody claims? You could easily hide defamatory material in a PhD thesis without anyone noticing.

        It's the bit about "becomes a bestseller" which sounds seriously implausible for any PhD thesis that I've had to read (or was supposed to read).

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