IP: 1984 has arrived in the UK -- Retrospective censorship

[David Farber <dave () farber net>]

> From: "Caspar Bowden" <cb () fipr org>
> To: "Dave Farber (E-mail)" <farber () cis upenn edu>
> Subject: FW: Retrospective censorship
> Date: Tue, 8 May 2001 14:41:00 +0100
> X-Mailer: Microsoft Outlook CWS, Build 9.0.2416 (9.0.2911.0)
> Importance: Normal
>
> Dave
>
> think this is one for IPers...
>
> --
> Caspar Bowden               Tel: +44(0)20 7354 2333
> Director, Foundation for Information Policy Research
> RIP Information Centre at:    www.fipr.org/rip#media
>
>
> -----Original Message-----
> From: ukcrypto-admin () chiark greenend org uk
> [mailto:ukcrypto-admin () chiark greenend org uk]On Behalf Of Ross Anderson
> Sent: 08 May 2001 13:02
> To: ukcrypto () chiark greenend org uk
> Subject: Retrospective censorship
>
>
> A UK judge has recently awarded himself the power to alter a
> newspaper's online archives to remove an alleged libel. This must be
> among the worst news we've had on the infopolicy front for some time.
>
> If UK online archives are vulnerable to lawyers while US archives are
> not, then why on earth should anybody publish anything in the UK? It's
> not as if there is no bias already - I had my book published by Wiley
> New York rather thah Wiley Chichester because the New York people are
> much more on the ball - but with this news I wouldn't even consider
> Wiley Chichester for my next book, even if they learned to use email
> and to ship review copies on time. Having the electronic versions of
> my book subject to retrospective censorship, at the whim of any
> vexatious litigant, is simply intolerable.
>
> If this judge isn't overturned by the appeal court, or by Parliament,
> then Tony's promise to make Britain the best place in the world for
> e-commerce will become a total laughing stock. After all, most of
> e-commerce is about publishing in one form or another.
>
> Five years ago I wrote a paper (`The Eternity Service') one of whose
> assumptions was that online archives might become subject to
> censorship. The main action since then has been on copyright rather
> than censorship, and the paper's main spin-offs are services like
> gnutella. But now the vultures come home to roost.
>
> Ross
>
>
> http://www.guardian.co.uk/Archive/Article/0,4273,4181935,00.html
>
> Position impossible
>
> Peter Stothard
> Guardian, Monday May 7, 2001
>
> Times editor Peter Stothard says a libel case against his paper could
> result in publications with internet sites facing eternal damnation by
> the courts
>
>
> The editor of the Guardian, Alan Rusbridger, and I do not agree on
> everything. But we do agree on one big thing: that talking about your
> libel actions is only one social step up from talking about your
> chilblains, your charity work, or your children's prowess on the
> recorder.
> Both of us have fought difficult cases. But, as Rusbridger told
> readers of the Times last week, most of our fellow journalists see
> libel cases as some unfortunate disease, one which any of us might
> catch at any time but which the sensible suffer in silence.
>
> For many reasons the case of the Times v Loutchansky, now on its way
> to the court of appeal, demands more than the usual media
> inattention. It is the story of a Russian whom Time magazine once
> referred to as ... well, I won't give the quote because as a result of
> our case it would have to worry the Guardian lawyers ... and a
> newspaper that published what a senior Interpol source said about him.
>
> Under new procedures, the journalistic procedures of the Times were
> vindicated in front of a high court jury. But a judge rejected the
> newspaper's claim that it had "qualified privilege", a form of
> immunity from libel actions, which we were claiming under House of
> Lords guidelines on the story's public importance and professional
> handling set out in 1998. Various issues of journalists' rights and
> duties, including how we publish stories based on security sources who
> cannot come to the witness box, are now set to be decided by higher
> courts.
>
> But the case has also raised issues of an immediately practical
> kind. These affect every newspaper with an internet edition. The
> archive section of a newspaper's website could now be open to libel
> actions forever, with no defence being available.
>
> In December 1999, Loutchansky sued the Times over two articles
> published in print the previous September and October. But a year
> later he also sued over the continued availability of the articles in
> the archive of the online edition of the Times. His lawyer argued
> that, since we had no witnesses able to testify to the truth of the
> disputed stories, we were not entitled to keep them on the internet
> edition once we had failed to mount a justification defence.
>
> The first question was a technical matter. A claimant suing on the
> "hard copy" does not need to prove that anyone read or saw the
> defamatory material. The action must, however, be brought within the
> limitation period of one year from the date of original publication.
> What about internet archive material? Would publication of such
> material be similarly treated? Could the publisher be sued years after
> the material was first posted?
>
> The Times argued that the courts in this country should adopt the
> American "single publication" rule. This says that publication takes
> place on the day the material is posted on the website. Thereafter, if
> it remains untouched by the hand of the publisher, there is no
> subsequent "publication". Thus the limitation period would run out a
> year after the date on which the material was first posted.
>
> Mr Justice Gray, relying on Duke of Brunswick v Harmer (1849), ruled
> that the single publication rule could not be introduced in this
> country. He went on to rule that, provided the claimant could show
> that someone had read the article, he could bring an action for years
> to come, regardless of when the original article was posted.
>
> Can even defences that were available on the original day of
> publication be relied on later? If the original publication enjoyed
> qualified privilege, should subsequent publications on the internet be
> protected as well? The judge in our case said no. On each publication
> the defendants had to show that it had immunity. He rejected our
> contention that the archive was automatically entitled to have the
> original privilege. He held that the defence of qualified privilege
> would have to be made on each occasion that the article was read
> online.
>
> Thus, even had we won our qualified privilege, we would have
> lost. This decision places publishers which maintain an archive in an
> impossible position. If a newspaper, defending a "hard copy" action,
> failed to justify an article, or if its qualified privilege defence
> failed, no one would suggest it had to cut out the article from all
> library copies of the newspaper. But, internet archives would be
> censored in this manner - unless the defendants could prove the truth
> of what they published, or a continuing duty on their part to publish
> and a continuing interest on the part of the public to read the
> articles. This could mean redefending the allegations years later.
>
> A clearly better course for the law, rather than altering the first
> draft of history, would be to link any corrections to the relevant web
> pages. The only other alternative, short of internet publishers
> employing armies of lawyers to reconsider daily if they are justified
> in continuing to publish every single item on their websites, is for
> publishers to stop publishing their full newspaper on the net. The law
> has taken an enormous backward step.



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