Jack Straw has announced his intention to instigate libel reform to deal with the “chilling effect” that a recent authoritative Reuters Report (see our post here) concluded did not exist. One element of that reform is a proposed new statutory version of the Reynolds defence. This what Mr Straw has said:

Finally – and perhaps most importantly for the media – we’ll be looking at whether to introduce a statutory defence to protect publications that are in the public interest. A statutory public interest test which is clearly and simply expressed could help ensure that the work done by journalists, scientists and NGOs to investigate and inform the public can continue – while also preserving the right we all have to protect our reputations.”

The recent deployment by The Times of the Reynolds defence in defending the claim against it by Detective Sergeant Flood (Flood v Times Newspapers [2009] EWHC 2375 (QB)) well illustrates the chilling effect that this defence has on both truth and justice. It also illustrates the practical consequences of any defence which transfers the risk of publishing false and defamatory material from the multi-nationals who do so for profit to the individuals who are the subject of those publications, such as innocent serving police officers.

The Reynolds defence which was created around 10 years ago permits publishers to escape liability for publishing false and defamatory material if they can persuade the court that it constituted “responsible journalism”. The approach is illustrated by this section of the judgment of Mr Justice Tugendhat:

Weight should in this case be given to the professional judgement of the editor and the journalist. There is no indication that the decision to publish the article in the form it was published on 2 June [2006] was made in a casual, cavalier or slipshod or careless manner.” [202]

It follows then that even where the article at issue contains not a grain of truth and carries the potential to ruin the career of a public servant and rob him of his ability to provide for his family, the multi-national company is permitted to transfer the financial consequences of that publication being erroneous from itself to the innocent subject of the publication.

This also means that false and defamatory material published by national newspapers goes uncorrected and the general public is thereby misled. DS Flood was the subject of an investigation which showed that there was no evidence to support any allegation of wrongdoing against him. Had the officer not been fortunate enough to be the subject of this investigation, he would have had no remedy under English law.

In fact, he was cleared, but remarkably despite its obligations under paragraph 1 (ii) of the PCC Code to correct false information “promptly” and with “due prominence“, The Times refused to do so. It was for its publication after being notified that DS Flood had been cleared that the newspaper was found liable.

One of the absurdities of the Reynolds defence is that it directly contradicts the PCC Code, which was written exclusively by newspaper editors. This expressly provides not only that the press must not publish inaccurate or misleading material, but that if it does so, that material must be corrected promptly. It is difficult to understand how the English courts have created a public interest defence for the press which is irreconcilable with the PCC Code – which was written by the press in the interests of the public.

Society’s need for an effective law of libel is illustrated by the refusal of The Times to comply with the terms of the Code but the really remarkable aspect of this case is that English law would contemplate allowing (as this case illustrates) the reputation of a serving police officer to be robbed by a multi-national for profit, and provide no remedy.

This proposed state sponsored oppression for profit by multi-national corporations of individuals with slender means such as police officers is more redolent of a banana republic than a civilised society with a statutory set of human rights.

It would consign to the dustbin of history the long established common law principle, now affirmed by the European Court of Human Rights, that an individual has the right not to have his reputation taken from him unjustly. Could this have more to do with Jack Straw’s desire to prevail on the mighty power of Fleet St to support his party in the run up to the general election than the interests of the public?

Jonathan Coad,  Partner in Swan Turton and head of the firm’s Litigation Group.