Another media win, but cases will turn on their own merits even if the Reynolds privilege is repealed
The recent Supreme Court judgment in Flood v Times Newspapers Ltd upheld the right of the media to publish unsubstantiated allegations of corruption against a serving police officer. This apparently startling proposition belies a rather more subtle ruling considering the ambit of the so-called ’Reynolds defence’ of respon- sible journalism.
The respondent, Detective Sergeant Gary Flood, was identified in The Times as the officer under investigation in the Metropolitan Police’s extradition unit for allegedly receiving payments for supplying information to a security firm. The Met had launched an investigation, the respondent had been suspended and his home and office searched.
Despite there being no agreement as to the meaning of the article, the High Court, the Court of Appeal (CoA) and the Supreme Court all proceeded on the basis that the Reynolds privilege would apply if the publication was in the public interest and the publisher had acted responsibly.
Having regard to Lord Nicholls’ ten factors in Reynolds, the judge found in favour of the respondent but the CoA held that the test of responsible journalism had not been met because the newspaper had failed to verify the story adequately.
The Supreme Court reversed that decision. In doing so it held that it was legitimate for the newspaper to include the supporting facts that gave rise to the allegation since the media should be given latitude to exercise editorial control over what details were appropriate to give the article substance. It further held that it was in the public interest to name the respondent because not naming him would have placed other members of the unit under suspicion and the respondent could already be identified as the suspect by those who knew he had been removed from the unit.
As regards verification, the test Lord Phillips applied was that the journalists should be reasonably satisfied that there was a serious possibility Flood had been guilty of corruption. In finding that the journalists had satisfied that standard, the court took into account the fact that the journalists would have been entitled to conclude from the execution of a search warrant and the respondent’s suspension that there was substance to the allegations.
This ruling can be seen as adding to the line of authorities – consistent with the case law of the European Court of Human Rights under Article 10 of the Human Rights Act 1998, which Reynolds pre-empted – that favour freedom to publish matters of genuine public interest.
While Flood continues a welcome trend for the media, it is not a watershed. Both on the question of what constitutes public interest and on the verification required, each case will turn on its own facts. The same is likely to be true even if the Reynolds defence is repealed and replaced by a statutory defence of responsible publication on a matter of public interest, as proposed by the Government in its draft Defamation Bill.