On 21 March the Supreme Court handed down a long-awaited judgment, overturning a decision of the Court of Appeal and reinstating the finding of the trial judge Mr Justice Tugendhat that a report published in the Times on 2 June 2006 was protected by Reynolds privilege. As is always the case, the decision was fact-sensitive, and, as Lord Phillips pointed out, the case was an illustration yet again of the inherent complexity of the law of libel and the importance of identifying the meaning of the article.
In the article it was stated that accusations had been made about Sergeant Flood, a Detective Sergeant in the extradition unit at the Metropolitan police, that led Scotland Yard to investigate whether he was taking bribes to give information to Russian exiles.
The police investigation ended with a finding that there was in fact no evidence that Sgt Flood had acted corruptly and the trial judge accepted Sgt Flood’s evidence on this point. The Supreme Court’s ruling was confined only to the first limb of the appeal; whether the publication up to the point Times Newspapers Limited [“TNL”] was informed of the findings of the police investigation clearing Flood of wrong-doing attracted privilege. The second limb concerned the on-going online publication of the article.
The critical issue for determination, in assessing whether the report was protected by Reynoldsprivilege, was whether the publication, and in particular the publication of the details about the allegation and the naming of Sgt Flood was in the public interest, and whether the journalists had taken reasonable steps to verify the information. On the “verification issue”, the question was whether a journalist is required to check whether the accusations made are well-founded, or, as the Judge ruled at trial, a journalist is required to do no more than verify that the accusations reported were in fact made.
But first the Court had to look at meaning; you cannot decide whether the steps taken to verify are reasonable without first deciding what needs to be verified; this depends on meaning. Meaning should be a question for a jury at trial. According to Lord Phillips where there is a serious issue of Reynolds privilege, it will usually be for the parties to agree to trial by Judge alone so that the Judge can determine the range of meanings the article is capable of bearing.
Lord Phillips categorically ruled out introducing a “single-meaning” rule for privilege cases; saying [51] “When deciding whether to publish, and when attempting to verify the content of the publication, the responsible journalist should have regard to the full range of meanings a reasonable reader might attribute to the publication”.
In this case, the parties agreed that the article either meant there were strong grounds for believing that Flood had taken bribes or that there were grounds which objectively justified a police investigation.
Either way, the Supreme Court found the journalists, in their attempts to verify, had to do more than merely verify that the accusations reported were in fact made; in this respect the Judge had been wrong [77]. If a journalist reported the details upon which an allegation was based, they should be reasonably satisfied that those supporting facts were true [81]. In this case, the journalists were found to have done enough; they had a reasonable belief in the truth of what was reported. The police action (suspending Sgt Flood pending investigation and searching his home) was in fact prompted by TNL’s own enquiries, but the journalist assumed it was as a result of information given earlier to the police; it was found to be reasonable for him to have deduced that the fact of police action in itself indicated there were grounds to investigate. Moreover, the journalist’s evidence at trial was that his motive in publishing was to ensure that the police investigation was carried out promptly and properly; both the Judge and the Supreme Court found this worked in the journalist’s favour; it constituted a legitimate aim in publishing and was in the public interest to ensure that the investigation was carried out promptly.
The question of whether the publication was in the public interest was subsumed into the verification issue, it being found [see Lord Mance at para 123] that “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”. As to the naming of Flood in the article; whilst not ruling out cases in which it will be found not to be in the public interest to name an individual, particularly if they are not well-known figures (and regard must be had to the damage that will be caused to their reputation), on the whole the Court recognised that a story has greater impact if it is about named individuals and allowance must be made for editorial judgment in both the decision to name and the way in which the facts were reported.
Lord Brown [114] said he initially had doubts about whether it could be in the public interest to publish detailed allegations underlying a criminal investigation before even the police investigated. However he was persuaded that the impact of article 10 of the European Convention on Human Rights meant TNL could invoke privilege and he was satisfied that “not every anonymous denunciation to the police will attract Reynolds privilege”. The Court considered [196] that individuals damaged by an article were sufficiently protected by the requirement of verification, even if journalistic lines of enquiry and the evidence might fall short in some respects.
The Supreme Court emphasised the importance of flexibility within the Reynolds defence; the need to assess the standard or responsible journalism in a broad and practical way and the latitude allowed for editorial judgment.
The effect of this judgment will be that in some cases, reputations will be seriously damaged by the publication of untrue allegations without a means of redress. It also may make it easier for someone with an axe to grind to work with a sympathetic journalist to prompt both a police investigation and highly damaging widespread press coverage. The Court of Appeal ruling, now over-turned, reflected the concern that very serious harm could be done to the subject of allegations where newspapers are free to report details of accusations made to the police before that person is charged or before that person has a chance to defend the accusations in the appropriate forum.
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