the date upon which the material is first uploaded or made available via the internet, as is the position in most American states today. A critical question will arise under s.8(5) as to whether the manner of a subsequent publication is materially different from the manner of the publication of the first publication and the matters to which the court may have regard include: • The level of prominence that a statement is given and the extent of the subsequent publication. If, for example, the written publication was somewhere relatively obscure and, as the official explanatory notes suggest, requires several clicks to access it but has subsequently been promoted to a position where it can be directly accessed from the home page, that could amount to a materially different publication. • If a new edition of a book is published, there may well be an issue as to whether its publication is materially different, something that the US courts have grappled with for some time. In determining whether or not there is a new publication there will be a tension between whether this is simply the original publication or whether it has been repackaged or represented in a different form so as to render it a new publication for the purpose of limitation. There is no reason why the first publication date should not mirror the US model and be the date of publication of the hardcopy edition of a book, with a second publication date for any subsequent paperback edition and for e-books, Page7
the date upon which a particular edition is made available for download. The issues to be determined will inevitably be fact specific and there is scope for considerable litigation in this area. Questions to be answered will probably include: does the addition of a new link to archived material change the level of prominence or the extent of the subsequent publication from a relatively difficult matter to access to a more prominent item on a home page? Is the repeat of a broadcast simply a republication of the existing material outside the limitation period or is it materially different? Where any content is retransmitted in a different format, or is modified or changed in a material way, such as to change its meaning or context as opposed to a mere change in its presentation, then the modified version will almost certainly be considered to be a new publication which triggers the start of a fresh limitation period. However, for the purpose of calculating limitation 12 the original publisher should be considered only to be liable as a publisher of the republished, altered content where he authorised or intended it and not for any republication by a third party outside of his control. 13 The new rule will not, on its face, assist republication of material by another party. In such a case, any claim in defamation must be commenced against the third party responsible for the publication of the altered content within 12 months of the first publication of this content.
- Fall '15
- Law, Defamation Act