By Adam Wagner
UK Human Rights Blog | July 14, 2010
Flood v Times Newspapers Ltd  EWCA Civ 804 (13 July 2010) – Read judgment
A Detective Sergeant in the Metropolitan Police accused of taking bribes has won his battle against the Times to prevent the newspaper relying on the Reynolds defence, which allows allegations to be reported even the it they turn out to be wrong, in the interest of media freedom.
In June 2006 the newspaper had published an article entitled “Detective accused of taking bribes from Russian exiles”, leading the detective to sue in libel The Court of Appeal reversed the decision of Mr Justice Tugendhat in the High Court which had said the Times could rely on Reynolds privilege. The Inforrm Blog has provided an excellent analysis of the judgment. The post sums up the facts as follows:
The claimant was a Detective Sergeant in the Metropolitan Police. An anonymous source claimed that Russian oligarchs had paid a police officer for information about extradition requests. The source stated that the police officer “could be” the claimant and that he had reported this to the police. In April 2006 the journalists concluded that the police might not be properly conducting an investigation into the claimant. They approached the claimant and other persons concerned with the allegations which caused an investigation to commence. In June 2006 The Times published an article headed “Detective accused of taking bribes from Russian exiles”. It was published in its print edition and on its website, where it continued to be published after the date of the print publication. The claimant sued for libel over both print and website publications.
The claimant contended that the article had wrongly alleged that there were strong grounds to believe, or reasonable grounds to suspect, that he had abused his position as a police officer by accepting bribes from some of Russia’s most wanted suspected criminals in return for selling to them highly confidential Home Office and police intelligence about attempts to extradite them to Russia to face criminal charges. The Times sought to justify the allegations by reference to the meaning that he had been the subject of internal police investigation and that there were grounds that justified such investigation. The investigation found no evidence to support the allegations against the claimant.
Lord Neuberger, who gave the leading judgment, considered that the Reynolds defence should not apply here as it would give the media too much freedom to publish unsubstantiated allegations. He said at para 63 “The fact that an unidentified insider has given specific information which, if true, may incriminate a claimant, will very rarely be justifiable reportage.” He continued:
Of course, it will add something to the substance and newsworthiness of the story that the police are investigating the claimant, but it seems to me 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.
He went on to address the balancing act between two human rights: Article 8 (right to privacy) and Article 10 (freedom of expression). This balancing act is common to libel and defamation cases, as the rights to privacy of the person to whom the allegations relate are weighed against the rights of the media to publish information which is in the public interest:
The fair balancing of Article 8 and Article 10 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. If they are true, a claim for defamation will fail; if they are untrue, but their publication was in the public interest, and a reasonable check was carried out, there is good reason why a claim for defamation should fail, even though it is hard on the claimant; if they are untrue and their publication cannot be said to be in the public interest or no reasonable check was carried out, it seems quite unjust that the claimant should have no remedy in law
It is not yet clear whether the judgment represents a significant blow for the Reynolds defence, or whether this is simply a new gloss. Inforrm concludes:
Some commentators have suggested that this case means that “Reynolds is dead”. It seems to us that it shows that outside the special category of “reportage”, the reporting of allegations will only be protected by Reynolds if proper steps are taken to verify. The case seems to be close to the line on the “verification issue”. Overall, it demonstrates how difficult the issues concerning “responsible publication” can be in practice. We understand that the defendant is seeking permission to appeal to the Supreme Court. It will be interesting to see whether that court will take this opportunity to conduct a second re-examination of Reynolds.