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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