This is a guest post by Peter Noorlander

The European Court of Human Rights today handed down its judgment in the case of Times Newspapers Ltd (Nos. 1 and 2) v. the United Kingdom, which concerned the question of the application of the UK’s libel laws to newspaper Internet archives. The case arose from a defamation trial in the UK, Loutchansky v. Times Newspapers, in which the Court of Appeal confirmed that, for the purposes of the law of libel, an Internet publication should be considered to be ‘published’ afresh every time a reader views it. This rule, which was first formulated in 1849 (in a case in which the Duke of Brunswick had sued for libel in regard of a 17-year-old newspaper article), is of big significance to anyone who publishes online: it means that an online publisher can be sued for pieces that are several years old, when the reporter who wrote the story has potentially long left and for which there are no longer any notes. Such a challenge would be impossible to defend, and the Times‘s application to Strasbourg invited the court to rule not just on the facts but on the general principle that arose from it. It had pointed to the US, where the New York Court of Appeals as long ago as 1949 had observed that the Brunswick rule had been formulated ‘in an era which long antedated the modern process of mass publication’, and in 2002 had confirmed that defamation proceedings may be commenced in regard of online publication only within a period of one year of being uploaded.

In a brief and sparsely reasoned judgment (there are essentially only four operative paragraphs, although the judgment itself stretches to ten pages), and focusing very narrowly on the facts of the case before it, the Strasbourg Court disagrees with that contention. Pointing out that TheTimes maintains its own archives, and disregarding the PCC guideline that notices should be appended only after a final judgment has been given, the court opines that it would not be unduly onerous for it to append a notice to an archived news item whenever someone decides to institute proceedings in regard to it. Having thus found that The Times hasn’t really been inconvenienced, the court goes on to hold that ‘it is not necessary … to consider in detail the broader chilling effect allegedly created…’ It does throw the applicant a bone saying that ‘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…’.

This leaves a disappointing and weak judgment from the European Court of Human Rights –– and not for the first time. There has been a spate of cases in recent years in which the court appears to be retreating from its traditional, protective judgments on media freedom, and instead give greater weight to privacy and reputational interest. The low point was a case against France, a few years ago, in which the Court of Human Rights upheld a defamation judgment obtained by Jean-Marie Le Pen for a book which had described him as a hate monger and inciter of violence. While the court still has its moments as well –– it does still find violations when clear-cut cases are before it from countries such as Russia –– this is nonetheless a very concerning trend, if only for the fact that one can no longer predict with certainty which way it will go in a given case.

One also has to wonder why a court with a backlog of more than 100,000 cases (yes that’s correct –– more than one hundred thousand, and growing) refuses to rule on points of principle. Surely if they’d rule on the principle they’d avoid similar cases coming before it in the future, thereby reducing its own caseload and –– oh, hey –– also providing important guidance on points of human rights law. This is a function the court fulfilled with relish in the 80s and 90s, when it laid down important basic rules on defamation and protection of sources, but which it no longer seems interested in –– at least in the area of media freedom. The road it now travels down not only disappoints in individual cases, but also deprives Europe of what it really needs –– a strong, constitutional human rights court that is unafraid to deliver on points of principle, protect hard-fought rights and promote the free circulation of information that keeps democracy vibrant.