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On Monday and Tuesday 17 and 18 October 2011 the Supreme Court (Lords Phillips, Brown, Mance, Clarke and Dyson) will hear the appeal of the defendant, Times Newspapers, against the decision of the Court of Appeal ([2010] EWCA Civ 804)  that the publication of an article on 2 June 2006 was not covered by Reynolds privilege.   This is only the second time that the highest court has considered the application of the “responsible publication in the public interest”, first established by the House of Lords in Reynolds v Times Newspapers ([2001] 2 AC 127) nearly 12 years ago.  The Court is not being invited to engage in a radical reconsideration of the limits of this defence but rather to consider questions of balance and the limits of editorial discretion.

Facts

The respondent, Gary Flood, was a Detective Sergeant with the Metropolitan Police Service’s Extradition Unit.  In an article entitled “Detective accused of taking bribes from Russian exiles” the “Times” reported that allegations had been made by an unidentified source against him to the Met and that the Met was investigating those allegations.

The allegations were that a police officer with the codename Noah had taken bribes from a company called ISC which was headed by Ian Hunter (and old friend of Mr Flood’s) in return for passing confidential information to it concerning Russia’s attempts to extradite one of its clients, Boris Berezovsky.  The source said that Noah “could be” Mr Flood and that he had reported this to the police.  In April 2006 the journalists concluded that the police might not be properly conducting an investigation into the claimant. They approached the claimant and other persons concerned with the allegations which caused an investigation to commence.

The article which was published contained information which fell into three categories:

(1)  the fact that an allegation had been made by an unidentified person to the Met

(2)  the fact that the allegation was being investigated; and

(3)  detail about the allegations which had been made.

The claimant contended that the article had wrongly alleged that there were strong grounds to believe, or reasonable grounds to suspect, that he had abused his position as a police officer by accepting bribes from some of Russia’s most wanted suspected criminals in return for selling to them highly confidential Home Office and police intelligence about attempts to extradite them to Russia to face criminal charges.  The “Times” sought to justify the allegations by reference to the meaning that he had been the subject of internal police investigation and that there were grounds that justified such investigation. The investigation found no evidence to support the allegations against the claimant.

In a judgment handed down on 16 October 2009 Tugendhat J ruled ([2009] EWHC 2375 (QB)) on the hearing of a preliminary issue, that the Times was entitled to rely on the defence of Reynolds qualified privilege in relation to the printed publication of an article but not the continued publication on the internet after the “Times” was notified that the Met’s investigation had concluded in Flood’s favour.

One important point to note in passing that, contrary to the approach of the House of Lords in Reynolds the judge held that the Court should not “resolve lingering doubts in favour of publication”- neither the Article 10 right to freedom of expression nor the Article 8 right to reputation has “presumptive priority” ([149]).

Court of Appeal Decision

In its judgment of 13 July 2010 (([2010] EWCA Civ 804)  the Court of Appeal (Master of the Rolls, Moore-Bick and Moses LJJ) accepted that there were three requirements of Reynolds privilege, which could be gleaned from the opinions in Jameel [2007] 1 AC 359

(a) the article as a whole was on a matter of public interest,

(b) the inclusion of the allegations was part of the story and made a real contribution to it, and

(c) the steps taken to gather and publish the information were responsible and fair.

The Master of the Rolls accepted the claimant’s submission that conditions (b) and (c) were not satisfied in relation to the detail of the allegations.  He was not impressed by the argument that the mere report of allegations was covered by Reynolds:

“The fact that an unidentified insider has given specific information which, if true, may incriminate a claimant, will very rarely be justifiable reportage. Of course, it will add something to the substance and newsworthiness of the story that the police are investigating the claimant, but it seems to me that it would be tipping the scales too far in favour of the media to hold that not only the name of the claimant, but the details of the allegations against him, can normally be published as part of a story free of any right in the claimant to sue for defamation just because the general subject matter of the story is in the public interest. The fair balancing of Article 8 and Article 10 would normally require that such allegations should only be freely publishable if to do so is in the public interest and the journalist has taken reasonable steps to check their accuracy. If they are true, a claim for defamation will fail; if they are untrue, but their publication was in the public interest, and a reasonable check was carried out, there is good reason why a claim for defamation should fail, even though it is hard on the claimant; if they are untrue and their publication cannot be said to be in the public interest or no reasonable check was carried out, it seems quite unjust that the claimant should have no remedy in law” [63]

When it came to the steps taken verify the information, the Master of the Rolls concluded that they were inadequate:

“When one turns to the “steps taken to verify the information”, the journalists do not seem to have done much to satisfy themselves that the Allegations were true. When they were published in the article, they were, as the passages just quoted from the judgment show, and as the journalists must have appreciated, no more than unsubstantiated unchecked accusations, from an unknown source, coupled with speculation. The only written evidence available to the journalists did not identify any police officer, let alone DS Flood, as the recipient of money from ISC at all, let alone for providing confidential information” [73]

All three judges rejected the contention that whether or not to include the material on which the allegations were based in the article was a matter of editorial judgment.  As Moses LJ put it:

“Editors know how to attract the attention and interest of their readers and the courts must defer to their judgement of how best to achieve that result …  But non sequitur that it can be left to them to judge whether publication of the impugned details is of public interest. That is for the courts when determining whether the article as a whole was a proportionate interference with DS Flood’s right to his reputation. I agree that publication without investigation of the details on which the allegation was based was not in the public interest”.  [118]

The Court of Appeal also accepted Tugendhat J’s view that, after the Human Rights Act 1998, “lingering doubts” could not be resolved in favour of publication: Articles 8 and 10 were of equal value ([21]).

The Appeal

The “Times” does not, on this appeal, seek to challenge the fundamental parameters of the “responsible publication” defence – as clarified in Jameel. In its Grounds of Appeal it contends that the Court of Appeal made a number of “fundamental errors”.   It describes the decision as a“retrograde and impermissible departure” from principle, subverting investigative journalism on matters of public interest.

In particular, the “Times” says that the Court of Appeal

failed to follow Jameel (para 20a)

wrongly held that the inclusion in the article of details of the information being investigated by the police was fatal to the Reynolds defence (para 20c) and

misapplied the Reynolds requirement of verification, setting a standard that was too high and wrong in law (para 20(d)).

Furthermore, it is argued that the Court of Appeal should have accorded greater weight to the first instance judge’s striking of the balance.  It is said that it should have applied the approach in Galloway v Telegraph ([2006] EWCA Civ 17) and should only have overturned the judge’s decision on balancing conflicting Convention rights if it was “plainly wrong”.

In relation to the continuing website publication the “Times” argues that, in the context of the ongoing litigation it was entitled to decide not to update or amend the article on the website before trial.

Comment

This is a case about allegations, judgment and balance.  It concerns the limits of the protection given by the law to the reporting of unverified allegations.  Is this a matter for the judgment of the editors or is it an area in which the law should impose standards?  In contrast to the position in Reynolds and Jameel the issue will be expressly and directly framed in terms of the balance between Article 8 and Article 10.  The case illustrates how the law of defamation and the law of privacy are moving ever closer.  An important but subsidiary point concerns the extent to which the appellate court will interfere with the judgment of a first instance judge in striking this balance: is it closer to the exercise of a discretion or the making of a determination of law?

The decision at first instance was the first time that a national newspaper had successfully established a Reynolds defence. It has been forcefully argued that the decision of the Court of Appeal is inconsistent with the decision of the House of Lords in Jameel v Wall Street Journal ([2007] 1 AC 359).  The argument that if the Court of Appeal judgment stands then “Reynolds is dead” is plainly overstated.

The case involved the reporting of allegations.  It was accepted that the newspaper was entitled to report the police statement about the investigation (as this was covered by statutory qualified privilege) and it was conceded that the name of the claimant could also be reported.  The question is whether the reporting of the details of the allegations was covered by conventional Reynolds privilege.  In substance, the judge decided that this was a matter for editorial judgment by the media (see [2009] EWHC 2375 (QB) [202]) whilst the Court of Appeal decided that the claim to privilege failed because the steps taken to verify were inadequate.

The effect of the decision is that, outside the special category of “reportage”, the reporting of allegations made by others will only be protected by Reynolds privilege if proper steps are first taken to verify their truth.  This is a high hurdle for the media but, it could be argued, is necessary to protect the Article 8 reputation rights of those against whom allegations are made.

This case shows how difficult the issues concerning “responsible publication” can be in practice – which has been one criticism of the defence by libel reform campaigners.  The Defamation Bill does not take matters much further in this regard.  It can, however, be forcefully argued that this kind of approach is a necessary feature of a legal system which gives proper weight to both expression and reputation.  A defence similar in nature to Reynolds is now established in almost every common law jurisdiction outside the United States – most recently in Canada and Namibia.  In the end the carrying out of a “balance” between the competing rights is unavoidable.   As this case illustrates it will often not been an easy one to strike.

Hugh Tomlinson QC is a founding editor of the UKSC Blog and a member of Matrix Chambers.