Newspaper cannot be sued over libellous print report, Supreme Court rules

The Court said that The Times newspaper was not liable for defaming a police officer it named as the subject of a corruption investigation but who was later cleared of wrongdoing. This was because it had been in the public interest for it to publish the information and the paper had acted responsibly in doing so, the Court said.

The judgment overturned a decision by the Court of Appeal which had ruled that The Times could not rely on the so-called 'Reynolds defence' to escape liability for defaming police officer Gary Flood.

Previous rulings in cases involving former Irish Prime Minister Albert Reynolds and Saudi billionaire Mohammed Jameel have established that journalists cannot be sued for libel if they show that theirs was responsible journalism serving the public interest.

The Supreme Court said it was in the public interest for the newspaper to name Flood, as well as details of the accusations facing him, and that the efforts of the journalists involved to verify the 'facts' upon which they relied amounted to responsible journalism.

"My initial reaction on reading the facts of this case was that the journalists had been reasonably satisfied, on the basis both of the 'supporting facts' and of the action of the police that there was a serious possibility that Sergeant Flood had been guilty of corruption," Lord Phillips said in the ruling. http://www.bailii.org/uk/cases/UKSC/2012/11.html

"After a detailed analysis of the case I remain of that view. Contrary to the decision of the Court of Appeal, I consider that the requirements of responsible journalism were satisfied," he said.

In June 2006 London police officer Gary Flood was identified in a Times story as the subject of a police investigation into allegations that he was paid by a consultancy acting for wealthy Russians to pass on details of extradition activity.

Flood was investigated and neither criminal charges nor internal disciplinary charges were brought against him. The Times was told this in September 2007.

The High Court originally ruled that The Times was protected by the Reynolds defence in relation to the report it published in the newspaper in June 2006.

However, the Court of Appeal said the paper could not rely on the privilege. It had determined that naming Flood was permitted because a police statement had done so, but that publishing the details of the allegations against him was not. This was because it said the journalists who wrote the story did not meet the requirements of that defence.

The original High Court ruling defined those requirements as being "that the article as a whole should be on a matter of public interest, that the inclusion of the defamatory statement should be part of the story and should make a real contribution to it, and that the steps taken to gather and publish the information should have been responsible and fair".

However, the Supreme Court has now overturned the Court of Appeal's ruling and said that the paper was protected. It was in the public interest for The Times to publish details of the accusation facing Flood, the judges said.

"I have reached the conclusion that, subject to the issue of verification, it was in the public interest that both the accusation and most of the facts that supported it should be published," Lord Phillips said. "The story, if true, was of high public interest."

"That interest lay not merely in the fact of police corruption, but in the nature of that corruption. The object of the Extradition Unit of the Metropolitan Police was to assist in the due process of extradition. The accusation was that there were grounds for suspecting the respondent of selling sensitive information about extradition for the benefit of Russian oligarchs who might be subject to it," the judge said.

"What was suggested was not merely a corrupt breach of confidentiality, but the betrayal of the very object of his employment by the police. The story told was a story of high public interest and ... the allegations were the whole story," he said.

Naming Flood as the subject of the investigation was also legitimately in the public interest, the Court said.

"It was impossible to publish the details of the Article without disclosing to those close to [Flood] that he was the officer to whom it related," Lord Phillips said. "He would be identified as such by the other members of the Extradition Unit and anyone else who knew that he had been removed from that unit."

"There is also force in the point that, if he were not named, other members of the Extradition Unit might come under suspicion. Having regard to these matters, I have concluded that naming [Flood] was not, of itself, in conflict with the test of responsible journalism or with the public interest," he said.

The journalists that worked on the story believed Flood was probably guilty of corruption and had formed a "strong circumstantial case" to justify that view, Lord Phillips said. The efforts taken to verify the information was sufficient and it was "far fetched" to suggest that a key source "might have deliberately set out to deceive the police and [the reporter]," he said. Because of this the newspaper has a defence to the defamation claims against it, he ruled.

Four other judges agreed with Lord Phillips' findings.

"The investigation into possible police corruption in the area of extradition of a Russian oligarch to Russia informed the public on a matter of great public interest and sensitivity," Lord Mance said. "[The Times'] journalists were motivated by a concern to ensure that the investigation was being or would be properly pursued."

"They had themselves investigated the sources and nature of the allegations exhaustively over a substantial period as far as they could. The article would have been unlikely to be publishable at all without details of the names and transactions involved in the alleged corruption. The facts regarding such transactions were accurately stated," he said.

"The article, although undoubtedly damaging to DS Flood's immediate reputation, was balanced in content and tone. It did not assert the truth of the reported allegations of impropriety made by [an informant], but it identified them as the basis of an investigation in progress to establish whether there had been any impropriety."

"DS Flood and all others implicated in the allegations of impropriety were given the opportunity of commenting, and their denials in that regard were in each case recorded. Such omissions as there may have been in the reporting were in the overall context minor. The judgment of the journalists and editors of [The Times] as to the nature and content of the article merits respect. All these and other relevant factors fell and fall to be weighed in the balance," Lord Mance said.

"On this basis, there was, in my judgment, no good reason for the Court of Appeal to depart from the [High Court] judge's overall assessment that publication of the article was in the public interest, despite its immediate adverse effect on DS Flood's reputation. On the contrary, I agree with the judge's assessment," he said.

A separate issue still to be determined by the Supreme Court is whether the Reynolds defence is available to The Times for its online version of the Flood story. Both the High Court and Court of Appeal said that The Times' failure to amend the online version of the story to reflect the results of the police investigation when notified of it meant the paper was not entitled to the protections.