(Applications 3002/03 and 23676/03)
10 March 2009
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Times Newspapers Ltd (Nos. 1 and 2) v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having deliberated in private on 17 February 2009,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. The two articles in The Times
“British and American investigators are examining the role of an alleged second Russian mafia boss over possible involvement in money-laundering through the Bank of New York.
Investigators are understood to be looking at links to [G.L.: his name was set out in full in the original article], whose company, Nordex has been described by the CIA as an 'organisation associated with Russian criminal activity'.
[G.L.]'s name surfaced in earlier money-laundering investigations which may have links to the Bank of New York affair, in which millions of dollars of Russian money are alleged to have been laundered.
The Russian-born businessman came to the attention of European and American investigators in the early Nineties. They suspected Nordex of using its former international base in Vienna as a front for a large-scale money-laundering operation. His name also figured in a British police report in 1995, known as Operation Ivan, which looked at the extent of the influence of the Russian mob in London.
[G.L.] has repeatedly denied any wrong-doing or links to criminal activity.
Nordex, which has since moved out of Vienna, is also alleged to have been involved in the smuggling of nuclear weapons and by the mid-1990s reportedly controlled about 60 businesses in the former Soviet Union and another 40 companies in the West.
The Times has learnt that these included between eight and ten off-shore companies in British jurisdictions, including the Channel Islands and the Isle of Man.
They were administered through a chartered accountant in central London whose offices and home were raided in 1996 by officers from the City of London Police.
The companies were suspected of being used to help launder money from Russia, which was then channelled through European banks. No charges were ever filed against the accountant.
At about the same time a Yugoslav associate said to have been a frontman for [G.L.] was stopped and questioned after arriving at a London airport. No charges were filed against him.
The British investigation into Nordex is believed to have failed because of the difficulty of establishing that the money funnelled through off-shore companies controlled by Nordex was linked to criminal activities.
[G.L.] is alleged to be a former business associate of Viktor Chernomyrdin, the former Russian Prime Minister, and in 1995 his name hit the headlines after it emerged that he had been photographed with President Clinton at a Democrat fund-raising event in 1993.
He is also alleged to have had business dealings with Semyon Mogilevich, the Hungarian-based mafia figure at the centre of the Bank of New York investigation.”
“A Russian businessman under investigation by Swiss authorities pursuing allegations of money-laundering was a friend of [G.L.], a suspected mafia boss, the businessman's wife claims.
Lev Chernoi, the aluminium magnate under Swiss investigation, was given access to staff and a chauffeur by [G.L.] when he moved to Israel, according to Lyudmila Chernoi, Mr Chernoi's estranged wife ...
If Mrs Chernoi's allegation about a connection between her husband and [G.L.] is true, it will raise further questions about Mr Chernoi. In 1996 the CIA described Nordex, a company operated by [G.L.] and alleged to have been used to launder money and smuggle nuclear weapons, as an 'organisation associated with Russian criminal activity'.
In 1996 [G.L.] triggered a row in America after a photograph was published of him with President Clinton in 1993. [G.L.] has denied any wrongdoing.”
B. The commencement of proceedings
“This article is subject to High Court libel litigation between [G.L.] and Times Newspapers. It should not be reproduced or relied on without reference to Times Newspapers Legal Department.”
C. The Internet publications proceedings
D. The Court of Appeal
“We do not accept that the rule in the Duke of Brunswick imposes a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression. We accept that the maintenance of archives, whether in hard copy or on the Internet, has a social utility, but consider that the maintenance of archives is a comparatively insignificant aspect of freedom of expression. Archive material is stale news and its publication cannot rank in importance with the dissemination of contemporary material. Nor do we believe that the law of defamation need inhibit the responsible maintenance of archives. Where it is known that archive material is or may be defamatory, the attachment of an appropriate notice warning against treating it as the truth will normally remove any sting from the material.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Limitation Act 1980
“The time limit under section 2 of this Act shall not apply to an action for–
(a) libel or slander,
(b) slander of title, slander of goods or other malicious falsehood,
but no such action shall be brought after the expiration of one year from the date on which the cause of action accrued.”
“(1) It if appears to the court that it would be equitable to allow an action to proceed having regard to the degree to which–
(a) the operation of section 4A of this Act prejudices the plaintiff or any person whom he represents, and
(b) any decision of the court under this subsection would prejudice the defendant or any person whom he represents,
the court may direct that that section shall not apply to the action or shall not apply to any specified cause of action to which the action relates.
(2) In acting under this section the court shall have regard to all the circumstances of the case and in particular to–
(a) the length of, and the reasons for, the delay on the part of the plaintiff;
(b) where the reason or one of the reasons for the delay was that all or any of the facts relevant to the cause of action did not become known to the plaintiff until after the end of the period mentioned in section 4A–
(i) the date on which any such facts did become known to him, and
(ii) the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action; and
(c) the extent to which, having regard to the delay, relevant evidence is likely–
(i) to be unavailable, or
(ii) to be less cogent than if the action had been brought within the period mentioned in section 4A.”
B. The Internet publication rule
“In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting. Thus every time one of the defendants' customers accesses 'soc culture thai' and sees that posting defamatory of the plaintiff there is a publication to that customer.”
C. The defence of qualified privilege
“The underlying principle is conventionally stated in words to the effect that there must exist between the maker of the statement and the recipient some duty or interest in the making of the communication. Lord Atkinson's dictum, in Adam v. Ward  A.C. 309, 334, is much quoted:
'a privileged occasion is ... an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential'.”.
D. Press Complaints Commission Code of Conduct
i) The Press must take care not to publish inaccurate, misleading or distorted information, including pictures.
ii) A significant inaccuracy, misleading statement or distortion once recognised must be corrected, promptly and with due prominence, and - where appropriate - an apology published.
iii) The Press, whilst free to be partisan, must distinguish clearly between comment, conjecture and fact.
iv) A publication must report fairly and accurately the outcome of an action for defamation to which it has been a party, unless an agreed settlement states otherwise, or an agreed statement is published.”
E. The US single publication rule
“Under [the rule in Duke of Brunswick v Harmer] the Statute of Limitation would never expire so long as a copy of such book remained in stock and is made by the publisher the subject of a sale or inspection by the public. Such a rule would thwart the purpose of the legislature.”
“The policies impelling the original adoption of the single publication rule support its application to the posting of ... the report ... on the website ... These policies are even more cogent when considered in connection with the exponential growth of the instantaneous, worldwide ability to communicate through the Internet ... Thus a multiple publication rule would implicate an even greater potential for endless retriggering of the statute of limitations, multiplicity of suits and harassment of defendants. Inevitably, there would be a serious inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet which is, of course, its greatest beneficial promise.”
I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society ... for the protection of the reputation or rights of others ...”
B. The merits
1. The parties' observations
a. The applicant
b. The Government
2. The Court's assessment
a. “Prescribed by law”
b. Legitimate aim
“Necessary in a democratic society”
i. General principles
ii. Application of the principles to the present case
FOR THESE REASONS, THE COURT UNANIMOUSLY
Done in English, and notified in writing on 10 March 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Lech Garlicki