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.