Flood v Times Newspapers Ltd

A Reynolds public-interest privilege defence requires a court to balance freedom of expression against the claimant’s right to reputation under Article 8. The ten Reynolds factors remain relevant, but the former presumption that lingering doubts should be resolved in favour of publication cannot be applied as an automatic priority for freedom of expression.

Publication of a police investigation into alleged police corruption may be a matter of high public interest, even where the investigation was prompted by journalistic inquiries. The court must assess whether publication was responsible and fair, which requires consideration of proportionality. A continuing website publication must be assessed in the circumstances existing at the time of republication. Once the investigation has concluded favourably for the claimant, continued publication without a suitable update may cease to be responsible journalism.

The claimant, a Metropolitan Police detective sergeant, sued the publisher of The Times over a print article and continuing website publication alleging that he was being investigated for accepting bribes in return for confidential extradition information.

The claim was tried on the preliminary issue of the defendant’s Reynolds qualified-privilege defence. The defendant admitted that the article was defamatory but relied on the public interest in reporting police corruption and the police investigation. The central issues were whether the print publication was responsible and proportionate, and whether the website publication remained privileged as circumstances changed.

1. Print publication. The defence of qualified privilege succeeded in respect of the publication in The Times on 2 June 2006. Police corruption and the possible failure to investigate it were matters of high public interest. The fact that the investigation may have followed the journalists’ inquiries did not prevent reporting the fact that a police investigation was being conducted.
2. The Reynolds factors remained relevant, but had to be applied consistently with the Article 8 and Article 10 balancing exercise explained in Re S (A Child)(Identification: Restriction on Publication) [2005] 1 AC 593 and In re BBC [2009] 3 WLR 142. Neither freedom of expression nor reputation had presumptive priority. The question was whether publication pursued a legitimate aim and whether its benefits were proportionate to the harm caused to reputation.
3. The article’s naming of the claimant was within the range of editorial judgments open to the defendant. It added credibility to the story, helped avoid suspicion falling on all officers in the extradition unit, and might encourage witnesses to come forward. The court did not endorse the wisdom of publication, but respected the range of responsible editorial judgment.
4. The evidence did not establish a strong case that the claimant was the person referred to as “Noah” or that confidential information had been received. Nevertheless, the police had confirmed an investigation and had obtained a search warrant. The journalists were entitled to rely on the professional judgment of experienced editors and journalists where their decision was not casual, careless or slipshod.
5. Website publication. Qualified privilege succeeded for website publications made up to 5 September 2007 but failed for publications made from that date. A website publication must be assessed by reference to the circumstances prevailing when it is continued or republished. By September 2007 the investigation had concluded without evidence supporting wrongdoing, and the defendant knew that the claimant had returned to his duties. Responsible journalism required an update or suitable qualification.
6. The failure to remove the article or attach an adequate qualification after 5 September 2007 could not be described as responsible journalism. The preliminary issue was therefore determined accordingly, with consequential matters left for further argument or the trial of the remaining issues.