Defamation, Streaming and the Repeat Publication Rule

In Berezovsky v Michaels [2000] 1 WLR 1004 the House of Lords took it as a given that each download of a defamatory web page was a fresh publication. The Defamation Act 2013 was, in part, an answer to the libel-tourism that flowed from that rule. Section 8 created a single publication rule, starting the limitation clock at first publication and treating later publications by the same publisher as time-barred so long as they remain "substantially the same".

That language was drafted with a static internet in mind, a newspaper's online archive, a corrected blog post, a forum thread. The streaming era complicates the picture. A series episode that has been recut for a regional release, re-encoded with new metadata, or repackaged with a "now starring" trailer is technically a re-publication. Whether it is "substantially the same" within s.8(4) is a question the courts have not yet had to answer.

What "substantially the same" should mean

The Explanatory Notes to the 2013 Act tie the test to the manner and content of the publication, not its medium. On a defensible reading, a streamed episode that retains the same defamatory imputation is the same publication even if the bit-rate, soundtrack mix, or chapter markers have changed. The mischief s.8 addresses, perpetual liability for a static archive, is no less present because the archive is encoded in HLS rather than HTML.

The harder cases are editorial. A "director's cut" released years later, a region-specific edit that adds new footage, or a documentary updated with fresh interviews. These are not the same publication in any sensible reading.

Where this is going

The pragmatic answer is that streamers should treat editorially-altered re-releases as fresh publications, restarting the limitation clock on the changed material only. The contrary reading invites a permanent-archive defence that Parliament plainly did not intend.