In what appears to be the first Court of Appeal decision overturning a successful Reynolds defence, the decision of Mr Justice Tugendhat in the libel action brought against The Times by Met officer Detective Sergeant Flood was unanimously reversed by the Court of Appeal, who also rejected The Times’ cross appeal ( EWCA Civ 804).
The Swan Turton e-bulletin of 26 March 2010 commented on the decision of Mr Justice Tugendhat to uphold a Reynolds defence in the context of the proposed statutory version of that defence advanced by the then Home Secretary, Jack Straw. Fuller details of the case are set out in our earlier bulletin in which we criticised that judgment for a number of reasons including its impact on DS Flood in particular and public servants generally when faced with false and defamatory allegations published by powerful media organisations such as News International.
The Master of the Rolls held that the judgment of Lord Nicholls in Reynolds that “any lingering doubt should be resolved in favour of publication” should be set aside. It had been established that D S Flood’s Article 8 right to privacy and the Article 10 free speech right of the newspaper must be given equal weight.
The Master of the Rolls also observed that each case turns on its own facts, a very similar observation to those made concerning privacy cases where the same alarming prospect arises for practitioners trying to advise where the courts appear to make their decisions based on mere judicial reaction to a set of facts rather than the application of settled legal principles. As the court observed, this defence requires the making of value judgments. This means that no certainty as to the outcome is possible because how a judge will make that value judgment depends on his internal set of values and on such issues as the importance of free speech against truth and reputation is impossible to predict. The Master of the Rolls referred to earlier cases which he said were
“salutary reminders that publicising allegations of serious wrongdoing made by third parties …can cause serious distress and reputational harm to the victim, and that if they turn out to be untrue, there should be good reason before the victim is left without redress.”
As all three members of the Court of Appeal agreed, that was the key question in this case. However, as the Master of the Rolls later observed, if (and in this case when) the police officer in question was exonerated, “any responsible journalist would appreciate that those allegations required speedy withdrawal or modification. Despite this, nothing was done.” Neither the Master of the Rolls nor any of the other judges appears to appreciate the irony of this statement.
The irony is that once the Reynolds defence is invoked by the press, untrue and defamatory allegations remain uncorrected. The appellate courts have thereby ensured that nothing needs be done to correct false and defamatory allegations by those who are responsible for them. This impacts not only on the individual who is the subject of those allegations, but it also leaves the general public misled and deprived of a judicial determination as to whether an allegation made by the media against a public servant such as a police officer was true or false.
The second remarkable effect of the Reynolds defence is that not only does it permit publishers not to correct false and defamatory publications on matters of public interest (contrary to the stipulations of the PCC Code which the press itself wrote), it also passes the risk of inaccurate publications from publishers such as News International to serving police officers such as DS Flood. It therefore inevitably creates injustice, and is predominantly in the media’s interest rather than that of the public. It requires of practitioners the making of value judgements rather than the application of a readily discernible set of legal principles.
Since the Reynolds defence creates injustice and leaves the public ignorant of the truth any decision which rolls back the bounds of the defence (as this does) is to be welcomed. Perhaps the members of the Court of Appeal have sensed that to both transfer the risk of an error by News International to a police officer and rob him of the right to exoneration is in nobody’s interests but News International. Unfortunately, the Court of Appeal’s better decision in Jameel was unanimously overturned by the House of Lords (see the Swan Turton October 2006 e-bulletin), which decision was perceived as widening the defence. Hopefully, this will not be repeated in this case.