Legal Briefing

Flood v Times Newspapers [2012]: is the Reynolds qualified privilege defence finally coming of age?

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Technology, Media and Telecoms | 01 July 2012

On 21 March 2012 in Flood v Times Newspapers Ltd [2012] the Supreme Court unanimously upheld an appeal by Times Newspapers Ltd (TNL) and held that the newspaper had acted ‘responsibly’ in publishing an article about police corruption in 2006. This is the second occasion on which the country’s highest court has considered the defence of Reynolds qualified privilege1 as established by the House of Lords in Reynolds v Times Newspapers [2001], and the decision represents a modest shift in the law of defamation in favour of publishers.

When the House of Lords decision in Reynolds was reported in 2001, it was viewed as a significant victory by the media. However, in the years that followed it failed to have the transformative effect that the press had hoped for, as the courts adopted a strict approach to the application of the Reynolds’ guidelines. The defence repeatedly failed, including in the cases of Grobbelaar v News Group Newspapers [2002] and George Galloway MP v Telegraph Group Ltd [2006].

In Flood the Supreme Court was not being invited to drastically reconsider the boundaries of the Reynolds defence but to consider questions of balance and the limits of editorial discretion. The Court considered questions of meaning, public interest, the verification of sources and, when it comes to the issue of responsible journalism, how far decisions should be left to editorial judgment and how far the law should impose standards.

FACTS OF THE CASE

The case involved the reporting of allegations. Gary Flood was a detective sergeant in the Metropolitan Police’s extradition unit. In December 2005, Michael Gillard, one of the three journalists who wrote the TNL article, was first tipped off about alleged bribes for information from the extradition unit by one of his sources. The anonymous source claimed that a Russian oligarch had paid a police officer for confidential information about extradition requests. The anonymous source stated that, as the relevant police officer’s codename was ‘Noah’, the officer involved ‘could be’ DS Flood. The anonymous source had reported this information to the Metropolitan Police. Michael Gillard, with two other journalists, decided to investigate.

In April 2006, the journalists concluded that despite being aware of allegations of possible corruption within their force, there was significant doubt that a proper investigation was being conducted. The journalists had been informed by their sources that the police did not appear to be taking the information seriously and the source expressed frustration at the police’s failure to take any real action. TNL therefore decided to run a story headlined ‘Detective accused of taking bribes from Russian exiles’.

The article expressly named DS Flood and reported that an allegation had been made by an unidentified person to the Metropolitan Police that DS Flood was implicated in receiving bribes in return for extradition information. The article also reported that the allegation was being investigated by the police and published information regarding the basis for the allegation that DS Flood had behaved corruptly. The article was published in the newspaper’s print edition and on its website on 2 June 2006. The online article continued to be published after 2 June 2006. DS Flood sued for libel over both print and website publications.

On 5 September 2007 the Metropolitan Police, which had by this stage conducted a full investigation into DS Flood and searched his home, informed TNL that its investigation into DS Flood had found him innocent and that he had no case to answer. Despite this development, and a request on behalf of DS Flood to remove or amend the article being published online, TNL continued to publish the article in its original form without amending the publication to reflect the findings of the police investigation.

FIRST INSTANCE AND COURT OF APPEAL

The trial at first instance was heard by Mr Justice Tugendhat. The issue for Tugendhat J, and subsequently the Court of Appeal, was whether TNL’s journalists had carried out their journalistic duties with sufficient ‘responsibility’ to benefit from the Reynolds qualified privilege defence both prior to and subsequent to 5 September 2007, when TNL were notified that DS Flood was innocent. Tugendhat J dealt with these two time periods separately. He held that for the period prior to the notification by the police (Stage One) TNL had met the necessary standard, marking the first occasion on which a national newspaper had successfully relied on Reynolds qualified privilege, but that for the period subsequent to the notification (Stage Two) they were not able to rely on the Reynolds defence. DS Flood appealed the decision in respect of Stage One and TNL appealed the decision in respect of Stage Two. On appeal the Court of Appeal overturned Mr Justice Tugendhat’s judgment in respect of Stage One and found that TNL’s article was not the product of ‘responsible journalism’. At the same time the Court of Appeal upheld the decision in respect of Stage Two, meaning that TNL could not rely on the Reynolds defence in respect of the article at any time.

SUPREME COURT

TNL appealed the Court of Appeal decision to the Supreme Court; which again proposed to deal with Stage One and Stage Two separately. Full argument in respect of Stage One was heard by the Supreme Court, however time did not permit the Court to hear argument in relation to Stage Two. It was therefore agreed that the appeal in respect of Stage Two should be adjourned, to be pursued, if appropriate, after judgment had been given in respect of Stage One. The Supreme Court unanimously upheld the appeal in respect of Stage One and TNL subsequently requested to withdraw the remainder of its appeal in relation to Stage Two. Therefore the finding by the Court of Appeal that TNL cannot rely on the Reynolds defence beyond 5 September 2007 was never considered by the Supreme Court and stands.

A number of issues arose from the five separate judgments in respect of Stage One handed down by the Supreme Court2, although the three issues identified by Lord Phillips are of particular interest. The first important issue noted by Lord Phillips was the courts’ approach to the question of the meaning of the article in defamation claims where the defendant seeks to rely on Reynoldsqualified privilege.

MEANING

As Tugendhat J noted, the two meanings advanced by DS Flood and TNL were not substantially different. DS Flood’s case was that the article conveyed a Chase level 2 meaning (ie that there were grounds to suspect him of corruption, after Chase v News Group Newspapers [2002]) while TNL submitted a Chase level 3 meaning (ie that there were reasonable grounds to investigate the matter)3. Tugendhat J decided that the absence of a significant difference between the two meanings meant that it was not necessary for him to choose between them for the purposes of the preliminary issues. Lord Phillips held that it is necessary to consider what an article means, in order to consider what must be verified so as to satisfy the test for responsible journalism. Lord Phillips stated that in many cases, it may be prudent for parties to agree to trial by judge alone, in order for meaning to be tried as a preliminary issue. The fact that this had not happened in this case was inconsequential because the meanings advanced by the parties were not substantially different. There was no dispute that the parties’ respective cases fell within the range of possible meanings.

The Supreme Court stated that, where a publication is capable of bearing a range of meanings, the journalist, when deciding whether to publish and when attempting to verify, must have regard to the full range a reasonable reader might attribute to the publication. Most, if not all, publications are capable of more than one meaning. A journalist who fails to consider all reasonable meanings and focuses and acts on only one will not be held to have responsibly executed their journalistic duties.

PUBLIC INTEREST

The second important issue identified by Lord Phillips is that of public interest. The Supreme Court reaffirmed Lady Hale’s formulation in Jameel that, ‘there must be some real public interest in having this information in the public domain. But this is less than a test that the public “need to know”, which would be far too limited.’ The court emphasised the point that journalists who intend to publish allegations must carefully consider the public interest in doing so and weigh this against the risk of unjustified damage to the reputations of those affected.

Lord Phillips considered the question of whether it is in the public interest to refer to details of allegations made to the police. DS Flood accepted that the general subject matter of the article, police corruption, was of public interest. However, he maintained that the newspaper’s publication of the facts giving rise to the allegations being investigated was not a matter of public interest. This contention was rejected by all five Supreme Court Justices who found that there was no good reason to depart from Tugendhat J’s initial assessment that the publication of the article was in the public interest. Public interest lay not only in the fact of police corruption but in the nature of the corruption.

Key to the Lordships’ reasoning in relation to the issue of public interest was their finding that at the time of publication the newspaper had good reason to doubt that an appropriate investigation into DS Flood was being conducted by the Metropolitan Police. The Reynolds qualified privilege defence hinges on what a journalist reasonably knew at the time of publication and the court held that the promotion of a proper investigation into police corruption was a ‘legitimate aim’ of publication.

PUBLIC INTEREST IN NAMING DS FLOOD

The article expressly named DS Flood and so the further matter of whether there was a public interest in naming the claimant was also considered by the Supreme Court. Lord Phillips made a distinction between public figures and non-public figures and noted that DS Flood, as an ordinary detective sergeant, fell clearly into the latter category. As most readers would not have heard of DS Flood, the addition of his name would not have engaged the public as it would if the article had been about a politician, sportsman or famous actress. The Supreme Court therefore held that had it been possible to publish the article without identifying DS Flood, the inclusion of his name would not have been held to have been in the public interest. However, the Court maintained that it would have been impossible to report the story without expressly naming DS Flood. Lord Mance stated that the article would have been unlikely to be publishable at all without details of the names involved in the alleged police corruption. Had DS Flood not been named, suspicion would have fallen on other members of the small extradition unit.

The naming of DS Flood therefore did not conflict with the test of responsible journalism or public interest. Lord Mance and Lord Dyson both emphasised the importance of journalistic judgement and giving appropriate weight to editorial freedom when considering how much detail should be included in an article. Lord Dyson stated that, as a matter of editorial judgement, the naming of DS Flood was justified and that the court should be slow to interfere with an exercise of that judgement. Provided that journalists consider public interest when the accuracy of the allegations have not been determined, it is for the editors and journalists and not the courts to judge what level of detail should be included in media publications.

VERIFICATION OF SOURCES

In his Reynolds judgment, Lord Nicholls set out ten criteria to be considered when deciding whether or not a defendant could rely upon the Reynolds qualified privilege defence. The steps taken by the journalist to verify the information in the article was one of Lord Nicholls’s ten criteria.

Therefore, in assessing whether or not TNL could rely on the Reynolds qualified privilege defence, the Supreme Court had to consider the question of what level of verification was required to discharge the requirements of responsible journalism and whether or not TNL had satisfied this level. The Supreme Court upheld the principle set out in Reynolds that it is unlikely to be in the public interest to publish material that has not been the subject of responsible journalistic enquiry.

Lord Phillips stated that the level of verification required will vary with the facts of each case and the meaning of the article. The Court confirmed that there are ‘no hard and fast principles’ in relation to verification but what may be required of a journalist can include the journalist satisfying themselves based on information from reliable sources. The Supreme Court found that responsible journalism required that TNL’s journalists should be ‘reasonably satisfied’ both that the supporting facts were true and that there was a ‘serious possibility’ that DS Flood had been guilty of the corruption of which he was suspected.

The Supreme Court overturned the Court of Appeal’s finding that the allegations were unverified, stating that its finding’s ‘undervalue the nature and significance of the steps which the Times’ journalists actually took’. The Supreme Court agreed with Tugendhat J’s conclusion that no criticism could be made of the steps taken by the journalists to verify the information. They held that the authors of the article had done all that they could to verify the story by ‘exhaustively’ investigating the sources and nature of the allegations over a substantial period.

The fact that the article had been properly investigated was one of the key factors in the Supreme Court’s finding that TNL could rely on the Reynolds qualified privilege defence. The judgment emphasises the need for judges in defamation claims always to have in mind the need to promote responsible, public interest journalism. TNL’s success was also informed by the fact that the subject matter was of great public interest and sensitivity, the facts were accurately stated and the tone and content of the article were balanced. Their Lordships held that overall the editorial judgement exercised by the newspaper should be respected.

Since the establishment of the Reynolds qualified privilege defence in 2001, and despite subsequent judicial commentary in Jameel & ors v Wall Street Journal Europe Sprl [2006], the media have found it difficult to demonstrate that the elements of the defence have been successfully met by their journalists. In this context, the decision in Flood has been enthusiastically received by the media; for example, James Harding, the editor of the Times, described the judgment as ‘a landmark decision in favour of responsible journalism.’ However it remains to be seen whether this decision will have any appreciable impact on the ability of the media to successfully rely on the defence.

The judgment in Flood is not a radical decision. It primarily reaffirms the basic tenets of the defence set out in Reynolds and emphasises the points made by Lord Nicholls in Reynolds and Lord Hoffmann in Jameel that the responsible journalism criteria are not strict hurdles to be overcome, but matters to be taken into account and applied in a flexible and practical manner.

By Allan Dunlavy, senior associate and Rosie Stewart, trainee solicitor, Schillings.

E-mail: allan.dunlavy@schillings.co.uk;
 rosie.stewart@schillings.co.uk.

Chase v News Group Newspapers [2002] EWCA Civ 1772

Flood v Times Newspapers Ltd [2012] 2 WLR 760

George Galloway MP v Telegraph Group Ltd [2006] A Civ 17

Grobbelaar v News Group Newspapers [2002] 1 WLR 3024 (HL)

Jameel & ors v Wall Street Journal Europe Sprl [2006] UKHL 44

Reynolds v Times Newspapers [2001] 2 AC 127 (HL)

Practical considerations following the Flood decision

Flood reaffirms all ten of the Reynolds responsible journalism criteria. However, the Supreme Court identified four points as being of particular importance and these should be borne in mind when engaging with a journalist who is considering publishing or broadcasting a story involving your business.

  1. What is the tone of the article? The tone and content of the article must be balanced. Is it going to say that your business is guilty of what is alleged or that there are grounds to look into the matter?
  2. What does the journalist think is the public interest in the story? Is the article properly a matter for public debate? There is no public interest in gossip, rumour or speculation.
  3. Are the facts of the article accurately stated? In Flood the Supreme Court emphasised the importance of journalistic accuracy.
  4. What evidence is the journalist relying on and how has the story been verified? Query what steps the journalist has taken to support the story and the allegations being made. Ask the journalist to provide any supporting documents and to identify sources. Is the journalist satisfied that the source is unbiased and doesn’t have an axe to grind?

Notes

  1. The House of Lords considered the defence in Jameel & ors v Wall Streeet Journal Europe Sprl [2006]. Their Lordships unanimously found for the defendant.
  2. The Flood Supreme Court appeal was heard by Lord Phillips, Lord Brown, Lord Mance, Lord Clarke and Lord Dyson.
  3. In Chase v News Group Newspapers Ltd [2002] the Court of Appeal identified that an article may carry one of three levels of meaning: guilt or serious grounds to suspect (level one), reasonable grounds to suspect (level two), grounds merely for an investigation (level three).