Loutchansky v Times Newspapers Ltd (Nos 2–5)

Reynolds v Times Newspapers Ltd [2001] 2 AC 127 requires an objective assessment of responsible journalism. In public-interest defamation cases, privilege depends on whether responsible publication made it proper to communicate the material to the public. It does not require that a publisher would properly be criticised for withholding it.

Each access to defamatory archive material on a website remains a separate publication and cause of action. That rule is compatible with Article 10, since archive material has lesser public importance and a suitable qualification will normally remove its sting. Repeated unqualified online publication of allegations which the publisher does not seek to justify cannot attract Reynolds privilege.

Dr Loutchansky brought consolidated libel actions concerning two articles published in The Times in 1999 and their continuing availability on the newspaper's website. The articles alleged serious organised-crime activity. The defendants pleaded qualified privilege but did not seek to justify the allegations.

Gray J made a series of rulings, including rulings on privilege, online publication and limitation, Russian publication, and summary disposal. His liability judgment is reported as Loutchansky v Times Newspapers Ltd (No 4) [2001] EMLR 898. The appeals raised the correct standard for Reynolds privilege, whether English law should adopt an internet single-publication rule, and the scope of the statutory summary-disposal jurisdiction.

1. The First Action Liability appeal was allowed in part. The court held that Gray J had applied too demanding a test for the duty to publish. It was permissible to use the question whether a publisher would attract legitimate criticism for non-publication as a cross-check where the answer was affirmative. Its converse was false: responsible journalism may permit either publication or delay or abstention.

   Under Reynolds v Times Newspapers Ltd [2001] 2 AC 127, the decisive, composite question is whether responsible journalism made publication proper in the public interest. The court must decide this objectively. A public-interest publisher has no duty to publish unless it acts responsibly. The matter was remitted to Gray J to reconsider the first-action privilege defence on that basis.

2. The Internet Single Publication appeal was dismissed. The rule in Duke of Brunswick v Harmer remains that every individual publication gives rise to a separate cause of action. The court declined to introduce the American single-publication rule for online archives. The resulting rule was not a disproportionate interference with Article 10 rights, particularly because archive material is stale news and an appropriate warning can normally remove any defamatory sting.

3. The Internet Qualified Privilege appeal was dismissed. The judge was wrong to treat an absence of an asserted honest belief as fatal to Reynolds privilege. Nevertheless, he was right to strike out the defence. Repeated online publication for a year, without qualification, of allegations being litigated and not being justified could not be responsible journalism or a publication which the defendants had a Reynolds duty to make.

4. The Russian Publication appeal was dismissed. Russian law permitted compensation for moral damage, including injury to feelings. The evidence required to establish that damage was procedural and therefore governed by the lex fori. The respondent limited this part of his claim to injury to feelings.

5. The Summary Disposal appeal was dismissed. Section 8 of the Defamation Act 1996 permits summary disposal of the unresolved quantum part of a claim after liability has been determined, where the statutory conditions and the court's discretion are satisfied.

All appeals other than the limited First Action Liability appeal were dismissed. The remission was stayed pending any proceedings before the House of Lords.

• Court of Appeal: Allowed the First Action Liability appeal only to remit reconsideration of qualified privilege to Gray J. Dismissed the internet publication, Russian publication and summary-disposal appeals.

• High Court (Queen's Bench Division, Gray J): Made the interlocutory and liability rulings appealed from, including the liability judgment in Loutchansky v Times Newspapers Ltd (No 4) [2001] EMLR 898.