A recent UK High Court decision1 illustrates how a news report which may be defensible at the time it was first published can lose the benefit of that defence over time if it remains available on line. The case also indicates how a publisher's interaction with a defamation plaintiff can increase the sum of damages awarded.
Publishers should carefully consider updating and amending online publications following the outcome of an investigation or similar inquiry where the subject is cleared and has complained about the earlier reports, unless a defence of truth or fair report is clearly available.
Background – The Times article
On 2 June 2006, the Times published an article in print and online under the heading "Detective accused of taking bribes from Russian exiles". The article identified Gary Flood, an officer in the Metropolitan Police Service Extradition Unit, as being the subject of a police investigation into allegations that he was paid by a British security company with wealthy Russian clients to provide sensitive information regarding extradition activity.
The police investigation exonerated Flood, finding that there was no evidence that Flood had divulged any confidential information for monies or otherwise. Although the Times was informed of the outcome of the investigation on 5 September 2007, it did not publish a report on the outcome, either in print or on its website, and did not amend its website article until 21 October 2009. Between September 2007 and October 2009, the parties were in discussions regarding the wording of a report on the outcome but could not come to any agreement.
On 31 May 2007, Flood issued proceedings against the Times. The Times relied on two defences: a Reynolds (reasonableness) defence and justification (truth). The Reynolds defence succeeded to protect the print publication as well as the website publication but only until 5 September 2007 when the Times was informed of the outcome of the investigation. After that date, the Times lost the benefit of the defence and was liable for the website publication since "[t]he failure to remove the article from the website, or to attach to the article published on the Times website a suitable qualification, cannot possibly be described as responsible journalism".
The Times ultimately abandoned its truth defence and the matter proceeded to a hearing on damages for the website publication during the period September 2007 to October 2009.
The Judgment – distress, vindication and aggravation
Justice Davies of the High Court held that "following the conclusion of the police investigation [Flood] was entitled to expect [the Times] to amend the article and to publish, at the very least, the outcome of the investigation. The fact that for two further years [Flood] had to live with the article, publically detailing allegations of dishonesty and corruption, of itself, represents a need for proper vindication".
The Court was particularly critical of the way in which the Times continued to assert that its original article was true and her Honour accepted Flood's evidence that he felt bullied by the Times' aggressive in house legal manager when trying to negotiate a take down and apology.
In the middle of the trial on the Reynolds defence, the Times reported on the trial under the heading "Times defends "police cover up" libel action" and provided a link to the original unamended article. In conducting its initial justification defence, the Times sought information regarding, amongst other sensitive issues, the IVF treatment undertaken by the claimant and his wife. While her Honour held that the Times was entitled to pursue a defence of justification, "the manner in which the defence was conducted went beyond merely supporting the pleaded case namely that there had been, during the course of the police investigation, objectively reasonably grounds for the police investigation". Her Honour went on to state that the Times "felt no scruple in holding over [Flood] the threat of further investigations to undermine the conclusion of the police investigation and thus pressure [Flood] into settling on [the Times]'s terms".
Flood was awarded damages of £45,000 to reflect his distress, anxiety and suffering, damage to his reputation and the need for vindication. An additional £15,000 was awarded to represent the aggravated damages by reason of the Times' conduct and to "serve as a deterrent to those who embark upon public interest journalism but thereafter refuse to publish material which in whole, or in part, exculpates the subject of the investigation".
1Flood v Times Newspapers Limited  EWHC 4075 (QB)
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