Online archives: a new proposal to change an old law

The Duke of Brunswick didn’t achieve a great deal in his life. He was chased out of the Duchy of Brunswick by his subjects who felt they would rather be ruled by his brother. He spent the rest of his life, and a fair proportion of his wealth, collecting diamonds and conducting litigation. And because of this, he did leave a legacy that causes great concern to any host of online material.

Monument to the Duke of Brunswick

In 1849, the Duke sent his valet to purchase a ten year old copy of the Weekly Dispatch and then sued the journal for defamation (history does not record what the Weekly Dispatch had actually written about the Duke). Then, as now, any claim for defamation had to be brought within a limited period. The Duke argued that the relevant period started (in effect, re-started) each time the material was published. He won and established a rule of law that still applies today: each publication of a defamatory piece gives rise to a separate cause of action.

For a long time this rule has been unpopular, especially with publishers. The rise of the internet and of online archives has made calls for reform louder and more urgent. While the rule remains in place, a publisher can be liable every time the material is accessed. In effect, there is no end to the time period during which the claim must be made. Great, if you are the one bringing the claim. Not so good, if you are a publisher looking for a way to manage your risk.

After 162 years, reform is now on the cards. The Ministry of Justice has issued a draft Bill and a consultation that closes in June of this year. The draft Bill proposes to change the law so that the time allowed for any claim of defamation to be brought begins to run from the date of the first publication. Any subsequent publication is not relevant unless it is “materially different” from the first publication (for example, in terms of the level of prominence or the extent of the new publication).  Assuming that this provision survives the consultation process and the passage of the Bill through Parliament, publishers and those who run online archives will breathe a sigh of relief. And the Duke of Brunswick’s legacy to English law will be consigned to history. However, his monument (on the Quai du Mont Blanc and seen above) survives.


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