Flood v Times Newspapers Ltd (CA)

C was a Detective Sergeant with the Metropolitan Police Service’s (“MPS”)  Extradition Unit.  The Times reported: (a) the fact that an allegation had been made by an unidentified person to the MPS to the effect that C was implicated in receiving bribes from a Russian oligarch in return for bribes; (b) the fact that the allegation was being investigated; and (c) information which added credence to the unidentified source’s allegation.

C sued in regard to the initial print publication of 2 June 2006 and in regard to the publication of the same article on The Times website from that date onwards.  On 5 September 2007 the MPS informed The Times that its investigation had concluded that C had no case to answer.  However, The Times continued to publish the article in its original form without updating it to reflect this development.

The Times relied upon defences of Reynolds privilege and justification.

The trial of the Reynolds defence was presided over by Mr Justice Tugendhat without a jury. He held that the publications which took place up to 5 September 2007 were protected by the Reynolds defence because The Times‘ journalism had been responsible and the subject of the article had concerned a matter of public interest. However, those publications which took place after the MPS had informed The Times that the C had no case to answer were not protected because The Times ought, if it wanted to continue to publish the article, to have updated it in order to reflect the C’s exoneration by the MPS.

The Times appealed against the first instance decision concerning the publications which took place after 5 September 2007. C cross-appealed against the decision regarding the publications which took place prior to that date.

(1) Whether the Reynolds defence applied: (a) up to 5 September 2007; and (b) to publications after that date;

(2) Whether it was a matter of law as to whether the defence was to be upheld or whether the first instance decision was to be upheld unless the judge had erred in principle or reached a conclusion which was plainly wrong.

Dismissing The Times‘ appeal and allowing C’s cross-appeal:

(1) Reynolds failed because the article included information which suggested that there were reasons to believe the informant’s allegations. This information could only be protected by Reynolds if the journalists concerned had independently conducted a responsible investigation and had reasonably concluded that the allegations were sufficiently well-founded such as to merit publication. This had not occurred. As the trial judge had found: “There was no evidence known to the journalists that [C] had received payments from ISC, and none that he had disclosed confidential information.” Reynolds will not normally apply when a newspaper is repeating defamatory allegations which have been made by an unnamed source to the police.

Reynolds could not apply to those publications which took place after 5 September 2007.  Once the MPS’s exoneration of C became known “any responsible journalist would appreciate that those allegations required speedy withdrawal or modification. Despite this, nothing was done.”

The Times‘ Article 10 right to freedom of expression did not have precedence over C’s Article 8 right to reputation. Lord Nicholls’ statement in Reynolds that “any lingering doubts should be resolved in favour of publication” could no longer apply.

(2) Whether or not the defence succeeded was a matter of law and therefore the first instance judge if the conclusion he had come to was wrong.

This decision is an important addition to the corpus of authorities on the application of the Reynolds defence. It makes it clear that the essence of a Reynolds defence is verification: it is not enough for journalists merely to pass on what they have been told and they must check the substance of allegations themselves before publishing them.