Reporting criminal investigations just got trickier - Flood v Times Newspapers Ltd
Earlier this week, the Court of Appeal ruled that mere reporting of allegations without further investigation will not be covered by the defence of Reynolds qualified privilege (Flood v Times Newspapers Limited, 13 July 2010).
Baroness Hale commented in the House of Lords’ decision in Jameel v Wall Street Journal Europe Sprl [2007] "we need more such serious journalism in this country and defamation law should encourage rather than discourage it." It was hoped that the Jameel case would have this effect, with the House of Lords recognising that latitude needed to be given to editorial and journalistic judgment when considering the public interest test and the Reynolds criteria.
In the case of Flood, the Article in question concerned a police investigation into an allegation that an officer in the extradition unit had been corrupted by a former police officer now working on behalf of very wealthy and controversial Russians living in England. The investigation eventually exonerated Flood after the Times’ publication of the Article.
In writing the Article, the journalists went beyond a brief police press statement advising that the police were investigating allegations that a serving officer had made unauthorised disclosures of information to another in exchange for money. It also reported the nature of the allegations made to the Police and named the officer in question. Without these additions, the article would have been unnewsworthy.
The Times was partially successful in relying on Reynolds Qualified Privilege before the trial judge. However, the Court of Appeal overturned his decision. The Court of Appeal was unimpressed with the journalists’ checks and found that they “do not seem to have done much to satisfy themselves that the allegations were true.” Lord Neuberger MR held that the publication of the allegations was “no more than unsubstantiated unchecked accusations, from an unknown source, coupled with speculation.”
The Court of Appeal commented that the facts were not comparable with those in the Jameel case where the Wall Street Journal successfully relied on the defence of Reynolds qualified privilege. In that case, the journalist reported that the Saudi Arabian Monetary Authority was monitoring around 150 bank accounts of prominent businessmen to prevent them being used wittingly or unwittingly for funnelling terrorist funds and it identified some of the companies and individuals involved. The article did not contain any of the allegations or information on which the Authority had proceeded.
Lord Neuberger MR held 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 [of the European Convention on Human Rights] 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."
In summary, the Court of Appeal expects the media to stick to fair and accurate reporting of Police statements (and thereby rely on statutory qualified privilege) or, where they step outside statutory qualified privilege and report allegations that have been made to the police, journalists will need to make very real efforts to verify those allegations. In practice, this will often be difficult to achieve without mirroring the Police investigation, with the result that the media will have to wait for the results of that investigation before a report can be made.
Reynolds qualified privilege has historically been very difficult to rely on and this decision is in keeping with that trend. In 2007, the Jameel case gave the media hope that the defence could give it the flexibility it needs to report on matters of public interest. However, it should not be forgotten that the House of Lords' judgment in that case described the substantial lengths that the journalist went to in attempting to verify his story prior to publication. The success of the defence should be seen in that context. The standard of journalism seen in that case is likely to be expected of publishers/broadcasters who are to rely on Reynolds qualified privilege with success.
It is understood that Times Newspapers Limited is appealing to the Supreme Court. If the Times is unsuccessful, the media will be looking to the legislature for a solution. In his recent Private Member’s Defamation Bill, Lord Lester sought to codify the Reynolds defence as a defence of “Responsible publication on matters of public interest”. If the media want to be free to report investigations as they unfold rather than waiting for the end result, amendments may be needed to clause 1 of that Bill.
Click here to read the judgment.
Lawyers Niri Shanmuganathan, Lorna Caddy
