Verification - still a crucial task for the responsible journalist
What should a journalist do to be "responsible" so he or she can rely on Reynolds privilege?
In this article, we examine the issue of verification following the Supreme Court's decision in Flood v Times. Whether the journalist acted responsibly is a crucial part of the defence, particularly in relation to the lengths he went to in verifying the allegations contained in the article. In Lord Mance's view, "It will not be, or is unlikely to be, in the public interest to publish material which has not been the subject of responsible journalistic enquiry and consideration." Lord Brown's formulation of the privilege put the conduct of the responsible journalist at its heart (emphasis added):
- could whoever published the defamation, given whatever they knew (and did not know) and whatever they had done (and had not done) to guard so far as possible against the publication of untrue defamatory material, properly have considered the publication in question to be in the public interest?
A responsible journalist must have the range of meanings an article can bear in mind when he seeks to verify the facts on which the article is based. In an earlier case, Chase, the Court of Appeal described three potential levels of meaning: guilt (level 1); reasonable grounds to suspect (level 2); and grounds to investigate (level 3). The article in Flood did not go so far as to say that Flood was guilty of the allegations (level 1). The range went from, in Flood's view, that the article meant that there were strong grounds to believe, or reasonable grounds to suspect, that he was corrupt (level 2) to The Times' view that it meant that there were grounds objectively justifying the investigation into Flood (level 3).
What standards of verification are applied and why did the Supreme Court consider the journalists had done enough in Flood?
The journalist must take reasonable steps to satisfy himself that the allegation is true. Thus verification involves both a subjective and an objective element:
- The responsible journalist must satisfy himself that the allegation is true; and
- His belief must be reasonable and the result of a reasonable investigation.
Where the meaning is level 2 or 3, the responsible journalist must be satisfied that the grounds for suspecting or investigating exist, but he does not necessarily have to know the grounds themselves. The existence of the grounds can be based on information from reliable sources or inferred from the fact of a police investigation.
Lord Phillips held that the journalist in Flood was required to be reasonably satisfied that:
- the supporting facts in the article were true; and
- there was a serious possibility that Flood had been guilty of the corruption of which he was suspected.
Both of these tests were, in his view, satisfied. The information provided by a key source, including a dossier, "amounted to quite a strong circumstantial case" against Flood. It was not unreasonable for the journalist to have assumed that the police's activity (carrying out an investigation, obtaining and executing a search warrant and temporarily removing Flood from his unit pending the investigation) was a response to the source's information. The "natural inference" from this activity was that the police had concluded that the accusation might be well founded. The trial judge accepted Flood’s evidence that he was not guilty of corruption.
The journalists "had obtained as many documents as they could. They had not simply relied upon intermediaries, but had insisted on meeting the [source]". Overall, the journalists had put together the pieces of the jigsaw over a long period of time, obtained information from a range of relevant people, approached the police and made attempts to elicit comment from the implicated people and printed their denials. The publication had the purpose of ensuring an effective investigation. The facts regarding the transactions involved in the alleged corruption were accurately stated.
The Supreme Court rejected suggestions that more was required from the journalists. The Court of Appeal had overstated the requirements of responsible journalism in this case, particularly on the question of verification. For example, the Court of Appeal had criticised the journalists for not having gone behind the source of allegations made to the police. In addition, Lord Philips rejected Flood's criticism that no attempt had been made to investigate the truth of the allegations about Flood by checking whether or not he actually possessed valuable confidential information.
Lord Phillips' choice of wording ("serious possibility") suggests that journalists will still have to work hard to verify allegations. The same principles are seen in some of the other judgments. Lord Brown suggested that the allegations may "justifiably appear to the journalists to be supported by a strong circumstantial case". Lord Mance felt that " the press cannot disclaim all responsibility for checking their sources as far as practicable" but, in this case, the journalists had "investigated the sources and nature of the allegations exhaustively over a substantial period as far as they could". It should not be thought, therefore, that the Supreme Court has introduced a radically relaxed verification requirement, notwithstanding its view that the press should enjoy greater freedom to publish stories of genuine public interest.
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"Lord Phillips' choice of wording ("serious possibility") suggests that journalists will still have to work hard to verify allegations."