Legal Research

Online Defamation ? Single Publication Rule?

By John Gregory

The government of the United Kingdom is thinking about instituting a ?single publication? rule for online defamation. Here?s a story about that issue, with a link to the government?s consultation paper.

The single publication rule is an American rule that makes a limitation period for defamation run from the first publication of the defamatory statement. If the defamation remains available, say through the continuing availability of a book or through a newspaper archive, that does not restart the limitation period. US courts have applied that rule to Internet publications.

Canadian and British courts do not have a single publication rule and have not instituted one for the Internet. It is arguable that the Internet should have some such rule, because material put online is usually accessible for very long periods. Publishers say it is unfair to be exposed to liability indefinitely because of this feature of the online world.

(I recognize that my use of ?British? or ?United Kingdom? may mislead about the civil law in Scotland. I don?t have the time at the moment to check whether Scots law is different in substance ? or Quebec law either, for that matter. Happy to be enlightened on either civil law regime on these points.)

However, the European Court of Human Rights decided earlier this year that the current law on the topic did not violate the freedom of expression. A link to that decision is also included in the article noted above.

Potential plaintiffs say that a single publication rule could deprive them of a remedy for defamation, since the harm to their reputation is continuing and may not even begin until after the limitation period expires. This might be especially true in Canada, which tends to have very short limitation periods for materials published in newspapers (which of course raises the question, still unanswered in Canadian law SFAIK, whether the special rules for newspapers and broadcasters apply to web sites run by newspaper and broadcast organizations, or generally.)

Should the common-law jurisdictions in Canada institute a single publication rule, for online publications or in general?

Should they expressly provide that the provisions of their defamation law that provide special rules for newspapers or broadcasters apply to online publishers of any kind?

Full post as published by Slaw.ca on September 18, 2009 (boomark / email).