Flood v Times Newspapers Ltd

Reynolds public-interest privilege can, in principle, protect a report of allegations made to the police; there is no categorical exclusion for ex parte accusations. But statutory protection for reporting a police statement does not automatically cover the details said to have prompted the investigation. For those details, the court must ask whether the article as a whole is of public interest, whether their inclusion makes a real contribution, and whether the journalists acted responsibly and fairly. That ordinarily requires reasonable steps to check their truth. The public interest in a police investigation or in naming the officer does not itself make uninvestigated, unsubstantiated allegations publishable. Online privilege must also be reassessed when later information emerges. An appellate court treats the balancing exercise as a question of law, while remaining cautious because the trial judge saw the evidence.

DS Flood, a Metropolitan Police detective sergeant, sued Times Newspapers Ltd over a newspaper and website article reporting allegations that he had accepted money for disclosing confidential information. The action relied on the repetition rule. The High Court tried the validity of the Reynolds qualified-privilege defence as a preliminary issue and held that the original June 2006 publications were privileged, but that continuing website publication lost privilege after the police investigation report was communicated in September 2007.

Flood cross-appealed against the first ruling. TNL appealed against the second. The central issues were whether Reynolds privilege could cover detailed allegations made to the police and whether continuing online publication remained responsible after exculpatory information emerged.

The Court of Appeal unanimously dismissed TNL’s appeal and allowed Flood’s cross-appeal.

1. Scope of privilege. There was no rule preventing Reynolds privilege from applying to allegations made to the police. Statutory privilege under section 15(1) and paragraph 9 of Schedule 1 to the Defamation Act 1996 protected the fair and accurate report of the police statement, subject to malice and section 15(2). The court accepted, on the basis of the concession made, that this protection extended to identifying the officer under investigation. It did not automatically protect the underlying allegations.
2. Responsible journalism. Applying Reynolds v Times Newspapers Ltd [2001] 2 AC 127 and Jameel v Wall Street Journal Europe Sprl [2006] UKHL 44, [2007] 1 AC 359, the court considered the article as a whole, the justification for including the defamatory material, and the responsibility and fairness of the journalists’ conduct. The subject of police corruption was plainly of public interest. However, the detailed allegations were the substance of the story. They were serious, uninvestigated and unsubstantiated, came from an uncertain source, were not supported by the documents known to the journalists, and were published without reasonable steps to verify their truth. There was no relevant urgency. The public interest in the investigation did not extend automatically to its unchecked evidential foundation.
3. Editorial judgment and reportage. Editorial judgment was relevant to presentation and newsworthiness, but it was for the court to decide whether publication of the details was legally in the public interest. The limited reportage defence did not apply. The fact that allegations had been made, without more, could not justify publication of detailed incriminating material. The publication of those details therefore did not attract Reynolds privilege.
4. Appellate review. The balancing exercise was a question of law and not the exercise of a discretion. The appellate court had to decide whether the judge was right or wrong, although it had to proceed cautiously because the trial judge had seen the evidence and assessed the case over several days.
5. Continuing website publication. The original claim to privilege had to be assessed at the date of publication. Once the police report became available, however, responsible journalism required speedy withdrawal or modification of the online article. TNL could not shift that responsibility to Flood by offering wording which his solicitors reasonably rejected. The High Court was therefore right that continuing publication after September 2007 was not privileged. A clear waiver, estoppel or agreement might produce a different result, but none existed here.

1. Court of Appeal (Civil Division) [2010] EWCA Civ 804 : dismissed TNL’s appeal and allowed Flood’s cross-appeal.
2. High Court (Queen’s Bench Division) [2009] EWHC 2375 (QB) : held that the June 2006 print and website publications were protected by Reynolds privilege, but that continued website publication after 5 September 2007 was not protected.