Supreme Court overturns CoA ruling in Reynolds defence case

The Supreme Court has unanimously endorsed the use of the Reynolds defence, the right to claim a defence of public interest, in media cases.

The ruling overturns a Court of Appeal decision handed down by the Master of the Rolls Lord Neuberger and Lord Justices Moore-Bick and Moses (13 July 2010).

The case concerns a story published by The Times in 2006, alleging that Metropolitan Police Sergeant Gary Flood had sold information to Russian oligarchs about extradition requests. The policeman had previously been investigated by the Metropolitan Police but no charges were brought before the story was published online and in the paper.

Flood sued for libel, complaining that the article meant there were strong grounds to suspect he had abused his position as a police officer.

The Times invoked the Reynolds defence, which had been established in another case fought by The Times, led by the then-head of the newspaper’s legal department Antony Whitaker and enshrined in law in 1999.

Supreme Court president Lord Phillips gave the substantive ruling, handing a win to

One Brick Court’s Richard Rampton QC and Doughty Street’s Heather Rogers QC for The Times.

Appearing for Flood was 5RB’s James Price QC, instructed by Edwin Coe.

The court was asked to decipher three key points in relation to privilege in the libel case:how to decipher the meaning of the article; whether it was in the public interest to refer to the details of allegations made against Flood; and what verification was required to clear the threshold of responsible journalism.

The court ruled that the sensible method of deciphering the meaning of the article was to agree to trial by judge alone in the preliminary stage of the trial.

It found that The Times was right to publish the name of the appellant, ruling that a generalised report would risk another person in the same Metropolitan Police unit being mistaken as the story subject.

Supreme Court justice Lord Dyson stated: “[The] conclusion on the wider basis that the court should be slow to interfere with an exercise of editorial judgment and would hold on that ground too that the naming of the individual was justified in this case.”

Regarding verification, the court ruled: “No such hard and fast principles can be

applied when considering verification for the purpose of Reynolds privilege.”

Reiterating Lord Hoffmann’s ruling in Jameel v Wall Street Journal, the court stated: “Reynolds privilege absolves the publisher from the need to justify his defamatory publication, but the privilege will normally only be earned where the publisher has taken reasonable steps to satisfy himself that the allegation is true before he publishes it.”

The Reynolds defence permits publishers to escape liability for publishing false and defamatory material if they can persuade the court that it constituted ’responsible journalism’.

At the original trial in October 2009 Mr Justice Tugendhat held that the Reynolds defence could have been invoked prior to Flood being investigated and exonerated by the Independent Police Complaints Commission, but that thereafter the online edition should have been amended to reflect the facts (16 October 2009). This finding was overturned by the Court of Appeal on 13 July 2010.

Counsel:

For the appellant, Times Newspapers: One Brick Court’s Richard Rampton QC and Doughty Street’s Heather Rogers QC leading One Brick Court’s Kate Wilson.

For the respondent Flood: 5RB James Price QC leading 5RB’s William Bennett, instructed by Edwin Coe partner Nick Neocleous.