On March 10, 2009, the European Court of Human Rights held that the British Internet publication rule does not violate the right to free expression guaranteed by Article 10 of the European Convention. The case has profound implications for those bringing privacy- or disclosure-related tort claims based on materials available on the Internet – where U.K. law applies.

In Times Newspapers Ltd (Nos. 1 and 2) v. The United Kingdom, Nos. 3002/03 and 23676/03, the Times appealed a judgment in favor of a plaintiff who recovered for libel based on an article accessible in the Times online archives. In pretrial motions, the Times applied to amend its defense “to contend that as a matter of law the only actionable publication of a newspaper article on the Internet is that which occurs when the article is first posted on the Internet.” Id. at par. 12. The trial court rejected this argument, citing Duke of Brunswick v. Harmer [1849] 14 QB 154, the holding of which was that every delivery of a libelous article, even if arising from the same initial dissemination, gave rise to an additional cause of action.

The trial court rejected the Times’ further argument that it enjoyed qualified privilege because it was reporting on important matters – in this case, organized crime – because although such a defense might have been available for the original publication, it was not available for archived copies available on the Internet. Times v. U.K. at 14. Notably, the court based its decision in this regard on the “Internet publication rule,” announced in Godfrey v. Demon Internet Ltd. [2001] QB 201. That law provides that each viewing of a defamatory posting constitutes a new publication. Id. at 21.Id. at 21.

The Court of Human Rights held that application of the Internet publication rule to archived materials does not violate Article 10’s guaranteed freedom of expression because while the “primary function of the press in a democracy is to act as a public watchdog,” states have more latitude in regulating archiving of older articles; such archiving is only a secondary role of the press. Times v. U.K. at 45. According to the court, the possibility of endless restarting of the statute of limitations simply did not curtail the sort of expression Article 10 was intended to protect.

The U.K.’s Internet publication rule is at odds with the single publication rule in most U.S. jurisdictions and with the manner in which it has been applied to Internet publications. See, e.g., Firth v. State of New York, 12 A.D.3d 907 (2002), appeal denied, 4 N.Y.3d 709 (2005) (applying single publication rule to Internet reports and granting motion to dismiss on statute of limitations grounds). Nevertheless, Times v. U.K. and the underlying litigation concerning the archived materials is an important consideration for media that may be subject to privacy- and disclosure- related claims involving British law.