Flood v Times Newspapers Limited

The Reynolds public interest defence protects a defamatory publication where the information was of real public interest and the publisher acted responsibly in all the circumstances. There is no categorical rule against publishing detailed allegations of criminality before a police investigation is complete.

Where the public interest lies in the allegation’s possible truth, a journalist must undertake reasonable verification appropriate to the publication’s possible meanings. Primary proof is not invariably required. Reliable sources and reasonable inferences from police action may suffice. Pure reportage is different: the journalist need verify only that the allegation was made and must avoid adopting it.

Courts decide whether publication was in the public interest, while giving proper weight to responsible editorial judgment about necessary details and identification.

Flood v Times Newspapers Limited concerned a newspaper article reporting that Detective Sergeant Flood was being investigated for allegedly supplying confidential extradition information in return for payment. The article identified him, described the evidential basis of the allegations and recorded his denial. The police subsequently found no evidence of corruption.

Tugendhat J upheld the Reynolds public interest defence at [2009] EWHC 2375 (QB). The Court of Appeal reversed that decision at [2010] EWCA Civ 804, principally because it considered that the journalists had inadequately verified the allegations.

The first limb of the appeal asked whether the original publication was protected until the newspaper learned that the police investigation had cleared Sergeant Flood. The issues concerned public interest, publication of the supporting details and his name, the meaning to be considered, and the extent of the required verification.

1. Disposition. The Supreme Court unanimously allowed the first limb of the appeal and restored Tugendhat J’s judgment that the original publication was protected by the Reynolds public interest defence. Lord Phillips and Lord Brown reached that conclusion in separate judgments. Lord Mance’s reasons were agreed by Lord Dyson and Lord Clarke and supplied a majority basis for the decision.

2. The governing inquiry. Reynolds privilege is more accurately described as a public interest defence. The court asks whether there was a real public interest in communicating and receiving the information and whether the publisher acted as a responsible journalist in all the circumstances. Lord Nicholls’s ten Reynolds considerations are illustrative and flexible, rather than mandatory conditions. The court must balance freedom of expression against the public interest in protecting reputation.

3. Meaning and verification. A responsible journalist must consider the range of defamatory meanings which a reasonable reader might attribute to the publication. The more obvious and serious a meaning, the greater the care required. Where the public interest lies in the allegation’s possible truth, the journalist must undertake a reasonable investigation and have a reasonable basis for believing that the relevant grounds exist. Primary evidence is not invariably required: reasonable reliance on credible sources and reasonable inferences from police conduct may suffice. Pure reportage is different because its public interest lies in the fact that an allegation was made; in that situation the publisher ordinarily need verify that fact and avoid adopting the allegation.

4. Publication before completion of an investigation. There is no general rule preventing Reynolds protection for details of criminal allegations under police investigation. The risk of trial by press remains important, particularly for an ordinary private individual, but all circumstances must be considered. Allegations concerning corruption in the performance of an important public function may justify publication of their supporting details where responsible journalism is established.

5. Application. The alleged corruption concerned the integrity of police extradition work and was of very high public interest. The journalists investigated over a substantial period, met the insider, examined documentary material, considered the sources’ possible motives, sought responses, published the denials, and wrote in a measured tone. The police investigation, search warrants and removal of Sergeant Flood from the Extradition Unit reasonably reinforced the circumstantial case. Naming him and reporting the supporting details were justified by the story’s content, the risk of casting suspicion on other officers, editorial judgment and the legitimate objective of encouraging a prompt investigation.

6. Matters left open. The court declined, without relevant oral argument, to prescribe a general appellate standard for reviewing Reynolds decisions. The second limb, concerning continued website publication after the newspaper learned that Sergeant Flood had been cleared, was adjourned.

1. United Kingdom Supreme Court: At [2012] UKSC 11, the court unanimously allowed the first limb of the appeal, restored the High Court’s determination of Reynolds privilege, and adjourned the second limb.
2. Court of Appeal: At [2010] EWCA Civ 804, reported at [2011] 1 WLR 153, the court reversed the High Court on the first limb and held that the journalists had not taken adequate steps to verify the allegations.
3. High Court: At [2009] EWHC 2375 (QB), reported at [2010] EMLR 169, Tugendhat J held that the original publication was protected by Reynolds privilege, but that the protection ended when the newspaper learned that Sergeant Flood had been cleared and failed to remove or qualify the online article.