Flood v The Times: Reynolds privilege defence is back
The supreme court's unanimous decision in , handed down on Wednesday, gives some comfort to the media in what are otherwise gloomy times for journalists when the reputation of the news gathering and reporting trade, mid-Leveson inquiry, is hanging by a thread and the threat of statutory regulation looms large.
How refreshing then to see our most senior judges recognising, once again, the important role journalism plays in the free flow of information. If only the lower appellate court were as reliable: the decision of the court of appeal in this libel case , back in 2010, left whether the ingredients necessary to succeed in a defence of – also known as the responsible journalism defence and the Reynolds public interest defence – could ever be found in the real world.
was sued over a story about possible police corruption in connection with the extradition of an oligarch to Russia. The newspaper named Sergeant Gary Flood and provided details of allegations that led to an internal police inquiry, it also included a denial of impropriety from Flood, via his lawyers, and a statement from the Metropolitan Police confirming that an investigation was going on.
A major problem for The Times was that when it was informed, many months later, that the investigation found no evidence against Flood it didn't update its online article. When the case came before the high court, Mr Justice Tugendhat decided that, while the print publication was protected by Reynolds privilege, the defence to the web version of the story fell away after the police officer was cleared.
The court of appeal, by contrast, thought that Reynolds privilege did not apply at all: reporting the investigation was one thing, but it was not in the public interest for The Times to report details of the allegations against the police officer: "Lest it be thought the conclusion of this court impedes attempts to add interest and colour to a story, the newspapers and their readers have only themselves to blame," said Lord Justice Moses. "That a person is accused is generally of far greater interest than his or her subsequent triumphant acquittal."
After considering the range of meanings that could be attributed to The Times article and the steps taken by the journalists to verify their story, the supreme court put matters right.
"My initial reaction on reading the facts of this case was that the journalists had been reasonably satisfied, on the basis both of the 'supporting facts' and of the action of the police that there was a serious possibility that Sergeant Flood had been guilty of corruption. After a detailed analysis of the case I remain of that view,"
said Lord Phillips "I consider that the requirements of responsible journalism were satisfied."
Reynolds privilege amounts to the right of journalists to defend journalism which turns out to be wrong when they have acted responsibly in gathering and publishing the information. When this defence to defamation actions was established by the House of Lords, more than 12 years ago, Lord Nicholls listed 10 factors to be taken into account, which include the seriousness of the allegations, the steps taken to verify them, whether the subject matter is of public concern, the source of the information, urgency and whether comment was sought.
This is the second time the highest court has had to restate Reynolds privilege because of the failure of the lower courts to recognise a case that fits the defence when one comes along. In , the Wall Street Journal argued that the Nicholls factors have become tripwires for journalists. Lord Hoffmann agreed, saying that "in the hands of a judge hostile to the spirit of Reynolds, they can become 10 hurdles at any of which the defence may fail."
The supreme court was at pains to point out that each Reynolds privilege defence will turn on its facts. In this case the law lords found that it was in the public interest to publish the facts in support of the corruption allegations and to name the officer. "The story, if true, was of high public interest. That interest lay not merely in the fact of police corruption, but in the nature of that corruption," said Lord Phillips.
"The object of the Extradition Unit of the Metropolitan Police was to assist in the due process of extradition. The accusation was that there were grounds for suspecting the respondent of selling sensitive information about extradition for the benefit of Russian oligarchs who might be subject to it. What was suggested was not merely a corrupt breach of confidentiality, but the betrayal of the very object of his employment by the police."
The allegations, the supreme court concluded, were the story.
Lord Phillips noted that it would have been impossible to publish the details of the allegations without identifying the officer:
"He would be identified as such by the other members of the Extradition Unit and anyone else who knew that he had been removed from that unit. There is also force in the point that, if he were not named, other members of the Extradition Unit might come under suspicion. Having regard to these matters, I have concluded that naming the respondent was not, of itself, in conflict with the test of responsible journalism or with the public interest."
Another feature of the Flood case was that it balanced the police officer's article 8 rights (usually associated with privacy) under the European Convention against the newspaper's article 10 rights. This is because Strasbourg case law has in recent years established that article 8 encompasses the right to reputation. However in Wednesday's judgment Lord Phillips cautioned against "making an exact comparison" between defamation and other cases where it is necessary to balance these conflicting rights:
"The creation of Reynolds privilege reflected a recognition on the part of the House of Lords that the existing law of defamation did not cater adequately for the importance of the article 10 right of freedom of expression."