News that veteran media lawyer Alastair Brett has parted company with the Times so soon after the court of appeal ruled against the newspaper in the Flood case comes just as I am mulling over the impact of this significant libel judgment.
Those who thought the legal landscape was altered radically by Reynolds and Jameel appear to have been quite deluded. Reading the court of appeal’s judgment in Flood, I’m left wondering whether the defence of Reynolds privilege – also known as the responsible journalism defence and the Reynolds public interest defence – might be a figment of the imagination. There is a danger that this defence is only theoretically available and then only in a perfect world.
The Flood case concerned an investigation by journalists into allegations of corruption against a police officer, which resulted in an internal police inquiry. The story in the Times named the officer and provided details (it was the details the court of appeal objected to) of the allegations that sparked the police investigation. The newspaper also included a statement from the Metropolitan police, confirming it was looking into the matter and comments from Flood’s lawyers to the effect that he denied any impropriety.
Several months later the police investigation concluded there was no evidence against the officer, but the Times did not alter its web publication to reflect this. Mr Justice Tugendhat decided that the print publication was protected by Reynolds privilege, but the online article was protected only up to the point that the police officer was cleared. The court of appeal disagreed and said that the newspaper could not avail itself of the defence at all.
Reynolds privilege amounts to the right to get things wrong, provided the defendant has acted responsibly. The sorts of factors to be taken into account, when reviewing the defendant’s conduct at the newsgathering stage, were listed by Lord Nicholls in Reynolds. The 10 “Nicholls factors” include: the seriousness of the allegations; steps taken to verify them; whether the subject matter is of public concern; the source of the information; urgency; and whether comment was sought.
In Flood, the court of appeal decided that while it was fine to report that the police were conducting an inquiry, it was not in the public interest for the newspaper to tell its readers about the specific allegations that led to the investigation. The fact the story was about a matter of public concern didn’t justify that level of detail, and (in contrast to Tugendhat’s findings) the court of appeal said the journalists hadn’t done enough to verify the information obtained from their sources.
“Lest it be thought the conclusion of this court impedes attempts to add interest and colour to a story, the newspapers and their readers have only themselves to blame,” said Lord Justice Moses. “That a person is accused is generally of far greater interest than his or her subsequent triumphant acquittal.” He is, of course, not wrong on the latter point as the Times’ failure to update its website in this case shows. I have no sympathy with the newspaper on that front. I do, however, have some reservations about the court of appeal’s general approach to Reynolds privilege.
Should the claimant’s Article 8 rights (more usually associated with privacy) be balanced against the defendant’s Article 10 rights in a Reynolds privilege defamation case? While Article 10 (2) gives protection of reputation as one of the justifications for interfering with freedom of expression, there is no mention, as far as I can see, of Article 8 in either Jameel or Reynolds. I know the court of appeal (and for that matter Tugendhat) quoted Strasbourg cases including Pfeifer v Austria – decided after Jameel – as authority for the proposition that Article 8 encompasses the right to reputation, but how much weight should it be given in a case dealing with defamatory allegations made against a public servant?
Were the appeal judges right to interfere with the “full and careful” judgment of Tugendhat? The court of appeal’s justification for this was that a decision on Reynolds privilege is not a matter of judicial discretion, but a value judgment that raises a question of law to which there is only one right answer. I’m afraid this puts me in mind of judges dancing on the head of a pin. Given the variety of factors – weighted differently according to the facts of each case – to be put into the mix, common sense dictates that it’s illogical to cling to the notion that there can be only one correct response to a Reynolds privilege defence.
This brings me to a third problem with Flood. Media lawyers give pre-publication advice based on the defences likely to be available if proceedings are issued. However, as Flood’s case shows it is perfectly possible (likely even) for a careful and thoughtful judge to come to one decision about what constitutes responsible journalism and for three appeal judges to arrive at a completely different conclusion on the same facts. That makes the Reynolds privilege defence so uncertain as to be of little practical use.
The case may go to the supreme court. “We need much more serious journalism in this country and our defamation law should encourage rather than discourage it,” said Baroness Hale in Jameel. That doesn’t seem to be happening. Libel reform, anyone?
This article originally appeared on the Guardian Law Blog and is reproduced with permission and thanks.