Last week the Court of Appeal handed down a judgment which will be viewed by many as a blow for
journalists, reinforcing the principle that when seeking to rely on the defence of qualified
privilege in respect of defamatory allegations contained in publications, the onus falls squarely
on the journalist to establish that he or she acted responsibly in gathering information in support
of those allegations and that this obligation of responsible journalism continues even after
publication.
Since 2001, when the case of Reynolds v Times Newspapers Limited [2001] 2 AC 127 established the
'Reynolds defence' or 'Reynolds privilege', which provides journalists with a complete defence to
libel proceedings if the story published, even if false, is in the public interest and the
journalist acted responsibly in reporting it, only one newspaper has successfully run this defence.
This was the Times newspaper in Flood v Times Newspapers Limited [2009] EWHC 2375(QB). Flood was a
detective sergeant in the Metropolitan Police Service. In December 2005 journalists were notified
by an informant that a police officer in the Metropolitan Police had accepted payments in return
for passing confidential information about Russia's plans to extradite Russian oligarchs to a
London based security firm, which had links to opponents of President Putin of Russia. The
informant suggested that the police officer could be Flood and following an approach by a
journalist to Flood and others, a police investigation was sparked and a press statement concerning
the investigation released.
In June 2006, the Times published an article headed "Detective accused of taking bribes from
Russian exiles". The article made reference to the police investigation which was already underway
and (crucially as it turns out) made additional reference to the allegations of the informant. In
September 2007, the Metropolitan Police Service's Directorate of Professional Standards released a
statement confirming that they were unable to find any evidence to support the allegations against
Flood.
Mr Justice Tugendhat at first instance held that, despite the article containing serious untrue
allegations of impropriety and misconduct which were capable of causing real damage to Flood's
reputation, the article was covered by Reynolds privilege because as a whole it was on a matter of
public interest and the journalists had acted fairly and responsibly by taking sufficient steps to
verify the allegations made. The Judge went on to conclude that the continued publication of the
online article did not attract privilege because after September 2007, when the allegations had
been proven to be untrue, the publishers were no longer acting responsibly by leaving the article
online.
The Court of Appeal, last week overruled the decision. The Court of Appeal found that the
reporting of the police investigation was covered by the defence of privilege because it was an
accurate reflection of the press statement released by the Metropolitan Police Service. However,
the article went too far by making reference to the allegations of the informant which were no more
than "unsubstantiated, unchecked accusations from an unknown source", meaning that the allegations
could not be defended on the basis of Reynolds privilege. In reaching its decision the Court of
Appeal relied on the condensed 3 point test set out in the case of Jameel v Wall Street Journal
Europe Sprl [2007] 1AC 359, namely, that in order to attract privilege:
(a) the article as a whole must be on a matter of public interest,
(b) the inclusion of the allegations as part of the story made a real contribution to it,
and
(c) the steps taken to gather and publish the information were responsible and fair.
The Court of Appeal had to balance the competing rights under Article 8 of the European
Convention of Human Rights (Flood's right to protection of reputation) and the newspaper's rights
to freedom of expression under Article 10. In doing so, the Court of Appeal held that the Judge at
first instance had allowed the scales to tip too far in favour of the newspaper by holding that the
allegations made by the informant could be published as part of the story simply because the
general subject matter of the story was in the public interest.
In coming to this decision the Court of Appeal accepted Flood's argument that in cases where
serious allegations of impropriety or misconduct capable of causing grave harm to reputation are
levelled at the police or public bodies by an anonymous source, journalists must take particular
care to verify the accuracy to avoid malicious allegations being effectively published with
immunity.
It was no longer necessary for the Court of Appeal to decide the issue but it went on to confirm
that had the article attracted Reynolds privilege, after becoming aware of the outcome of police
investigation, the privilege would have been lost in respect of the continued online publication of
the article.
So, another blow for a newspaper trying to rely on Reynolds; is the Reynolds defence doing
nothing to protect free speech on issues of public importance? Whilst it is certainly true that
newspapers have failed to maintain this defence at trial, its existence does deter claimants from
pursuing claims where this defence is likely to be raised. Here, Mr Flood's reputation was left in
tatters exacerbated by the allegations that went beyond what the journalists could and should have
properly relied upon. Is it not right that he has recourse in these circumstances? Any vindication
this judgment affords him will certainly come at a price, and it is now four years since the
allegation was first made. Unfortunately for Flood this hard-fought victory may not be the end of
it; news has it that the Supreme Court awaits and we (surely more than Mr Flood) await its judgment
with eager anticipation.
For further information please contact:
Suzanne Seaman, Assistant
Solicitor, Collyer Bristow LLP
T: +44 (0)20 7470 4498 E: suzanne.seaman@collyerbristow.com