The Court of Appeal today allowed the cross-appeal of the claimant, Gary Flood, against a decision of Mr Justice Tugendhat ([2009] EWHC 2375 (QB)) who had ruled, 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.  The Court held that the publication of the article was not covered by Reynolds privilege.   It also dismissed the Times’ appeal against the judge’s finding that the privilege had been lost in relation to continuing online publication.  The judgment is available at [2010] EWCA Civ 804.

The claimant was a Detective Sergeant in the Metropolitan Police.  An anonymous source claimed that Russian oligarchs had paid a police officer for information about extradition requests. The source stated that the police officer “could be” the claimant 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. In June 2006 The Times published an article headed “Detective accused of taking bribes from Russian exiles”. It was published in its print edition and on its website, where it continued to be published after the date of the print publication. The claimant sued for libel over both print and website publications.

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.

The Court of Appeal rejected the claimant’s arguments that Reynolds privilege could not apply to the reporting of “ex parte” allegations or allegations made to the police.   It 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 claimants’s submission that conditions (b) and (c) were not satisfied.  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 reached the clear conclusion that these 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]

In a concurring judgment,  Lord Justice Moore-Bick emphasised the need for responsibility in reporting allegations of impropriety or serious misconduct:

“In my view responsible journalism requires a recognition of the importance of ensuring that persons against whom serious allegations of crime or professional misconduct are made are not forced to respond to them before an investigation has been properly carried out and charges have been made. It is very easy for allegations of impropriety or criminal conduct to be made, to the police, professional bodies and others who may have a duty to investigate their truth, out of malice, an excess of zeal or simple misunderstanding. If the details of such allegations are made public, they are capable of causing a great deal of harm to the individual concerned, since many people are inclined to assume that there is “no smoke without fire”. Moreover, there is a serious risk that once the allegations have been published the person against whom they are made will feel obliged to respond to them publicly, thereby depriving himself of the safeguard of the ordinary process and risking a measure of trial by press. I am not dealing here with the publication of the simple fact that a complaint has been made against a person, without any details being given, or with the publication of the fact that a person has been charged with a criminal offence” [104]

All three members of the court 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]

Comment

The decision at first instance was the first time that a national newspaper had successfully established a Reynolds defence.  The case gives rise to a number of points of interest.

First, there is the proper approach on appeal to the judge’s “balancing” decision.  The Court of Appeal were clear in their view that the “balancing” carried out by the first instance judge between freedom of expression and the right to reputation was not a matter of “discretion” but a matter of law on which appellate judges were entitled to form their own views ([45-49] per Master of the Rolls, [107] per Moore-Bick LJ).

Second, there is the relationship between the “conventional” and “reportage” limbs of Reynolds. Although the defendant did not argue “reportage”, this was a case involving the reporting of allegations rather than the assertion of truth.  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 for the Court of Appeal was whether the reporting of the details of the allegations was covered by conventional Reynolds privilege.  In substance, it decided that the claim to privilege failed because the steps taken to verify were inadequate.  On this point, the Court of Appeal differed from the first instance judge who had accepted that the journalist had “done all he could” to verify (see [2009] EWHC 2375 (QB) [162] and [199]).

Thirdly, it seems to us unlikely that the result would have been any different if, instead of applying the common law as found in Reynolds and Jameel, the court has applied the approach set out in clause 1 of Lord Lester’s Defamation Bill.   In all the circumstances, the Court of Appeal were of the view that the defendant had not acted “responsibly”.

Some commentators have suggested that this case means that “Reynolds is dead”.  It seems to us that it shows that outside the special category of “reportage”, the reporting of allegations will only be protected by Reynolds if proper steps are taken to verify.  The case seems to be close to the line on the “verification issue”.   Overall, it demonstrates how difficult the issues concerning “responsible publication” can be in practice.   We understand that the defendant is seeking permission to appeal to the Supreme Court.  It will be interesting to see whether that court will take this opportunity to conduct a second re-examination of Reynolds.