On 21 March 2012, The Supreme Court unanimously overturned the decision of the Court of Appeal in the case of Flood v. Times Newspapers Limited. The Court of Appeal had earlier ruled that Times Newspapers Limited ("TNL") was not entitled to rely on the public interest defence known as "Reynolds privilege" to protect its publication of a defamatory article concerning a member of the Metropolitan Police Service ("MPS").
Reynolds privilege takes its name from the case of Reynolds v. Times Newspapers Ltd [2001]. It is essentially a special type of defence, which protects the publication of defamatory material, provided:
- Publication of the information is in the public interest; and
- The publisher acts responsibly in publishing the information (often referred to as the "responsible journalist test").
The present case concerned an article published by TNL in June 2006, which reported on possible police corruption within the Extradition Unit of MPS. In particular, following a tip-off, TNL published allegations that MPS employee Sergeant Gary Flood had disclosed confidential information concerning extradition proceedings to a security firm in return for payment.
MPS were not aware of this alleged misconduct until TNL contacted them in April 2006. Following subsequent internal investigations at MPS, however, Sergeant Flood was ultimately cleared of any wrongdoing and sued TNL for defamation.
In October 2009, the High Court ruled that TNL's publication was protected by Reynolds privilege. This finding was, however, overturned by the Court of Appeal in July 2010. Thereafter, the matter was appealed to the Supreme Court.
The Supreme Court ruled that the Court of Appeal had erred in overturning the High Court's decision at first instance. The Court of Appeal's primary reason for denying the appeal had been that, in their view, TNL had failed to meet the responsible journalist test by failing adequately to verify the allegations of fact contained in the article. The Supreme Court thought otherwise.
The court revisited the original Reynolds judgment and stressed that verification was but one of the relevant factors to be taken into account in establishing the applicability of Reynolds privilege. In their view, verification as assessed by the Court of Appeal imposed "too strict a fetter on freedom of expression". Lord Phillips noted that "each case turns on its own facts" and that the duty of verification amounts only to "a requirement to verify in the circumstances of... [the] case".
The Supreme Court went on to analyse the other, equally important, factors to be taken into account in assessing whether Reynolds privilege is met, including:
- The seriousness of the allegation;
- The nature of the information and the extent to which the subject matter is a matter of public concern;
- The source of the information;
- The status of the information;
- The urgency of the matter;
- Whether comment was sought from the plaintiff;
- Whether the article contained the gist of the plaintiff's side of the story;
- The tone of the article; and
- The circumstances of the publication, including the timing.
Assessment of Reynolds privilege, Lord Phillip observed, "requires a balance to be struck between the desirability that the public should receive the information in question and the potential harm that may be caused if the individual is defamed". In the present case, the court found that balance to be in favour of the appellant, TNL.
This decision is likely to be well received by the media, providing extra clarity in a complex and important area. In addition, it makes a welcome change from the near ubiquitous negativity surrounding media conduct of late.
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