Has the decision of the Court of Appeal in Flood v Times Newspapers [2010] EWCA Civ 804 made the so called "Reynolds Defence" of qualified privilege based on responsible journalism unworkable?
The recent decision of the Court of Appeal in Flood v Times Newspapers has been greeted with dismay by many journalists who feel that it has unrealistically raised the bar on what constitutes "responsible journalism" into something approaching a counsel of perfection. After the House of Lords decision in Jameel v Wall Street Journal in 2007 many in the media started to believe that after an unpromising start where it could rarely be successfully relied on, the "responsible journalism" test laid down in the case of Reynolds a decade earlier was now being interpreted by the Courts with sufficient flexibilty for journalists to rely on the Defence with confidence where they had in good faith published defamatory allegations which ultimately turned out to be wrong but at the time had been published responsibly on a matter of public interest. The decision in Flood has been seen in the media as a retrograde step, further narrowing the scope for journalists to make their own editorial judgments about the level of detail to go into when reporting on matters of public interest such as ongoing police investigations.
In Flood the Times reported the fact that Scotland Yard were investigating allegations that an officer in the Metropolitan Police extradition unit, DS Gary Flood, had been corrupted and was taking bribes from Russian exiles. The Times published an article including a short statement from the police confirming that an unnamed officer was being investigated for making unauthorised disclosures in return for money. However The Times went further than the police statement and named Mr Flood as the officer being investigated and also set out the details of the allegations that had been made against him. After publication the allegations were subsequently investigated by the police and found to have no substance. DS Flood sued over the original publication in the newspaper and because the Times had taken no steps to amend or remove the article from its online archive after it had been made aware that the allegations were not true. In relation to its failure to remove or amend the online article after the allegations had been discredited the Times argued that it had only not done so because DS Flood had failed to agree a reasonable form of words.
The Court of Appeal concluded that in publishing details of the allegations and in going beyond the brief bald statement published by the police the Times had not taken sufficient independent steps to verify the allegations - it had instead published "no more than unsubstantiated unchecked accusations from an unknown source coupled with speculation". The Court also found that in relation to the online archive it was not for the newspaper to put the onus on DS Flood to agree wording - it was for the newspaper to take the initiative so as to ensure that the record was corrected promptly and adequately.
Many in the media will argue that this decision will effectively neuter public interest stories by stripping them of sufficient important colour and detail to make them interesting or newsworthy. However the clear message from the Courts appears to be that where serious unproven allegations have been made to the police then, in fairness to the subject of the allegations, journalists should restrict themselves to fair and accurate reporting of the matters contained in police statements (protected by privilege) , or, if journalists wish to go beyond those facts they should take real independent steps to investigate them. The Times has indicated its intention to appeal to the Supreme Court and at least on this occasion even its media rivals will no doubt wish it well.
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