Newspaper story did not qualify for responsible journalism defence, says Court of Appeal

The Court confirmed the High Court's view that operators of online news archives must change defamatory stories if new information comes to light or be responsible for that defamation on an ongoing basis.

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 2006.

The Court of Appeal agreed with the High Court's ruling that when The Times failed to amend its online version of the story in September 2006 to reflect the results of that investigation it lost a crucial defence against libel.

Disagreeing with the High Court, the Court of Appeal said that the original story should never have had that defence in the first place.

Rulings in cases involving former Irish prime minister Albert Reynolds and Youssef Jameel established that journalists could not be sued for libel if they could show that theirs was responsible journalism serving the public interest. This is called a 'Reynolds defence'.

The Court of Appeal said that naming Flood was permitted because a police statement named him. It said that publishing the details of the allegations against him, though, was not covered by the Reynolds defence because 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".

"Journalists should be relatively free to report matters which it is in the public interest to place in the public domain, and journalists should take reasonable care to verify the accuracy of stories which may damage reputations," said Master of the Rolls Lord Neuberger in the Court of Appeal ruling.

"When one turns to the 'steps taken to verify the information', the journalists do not seem to have done much to satisfy themselves that the Allegations were true," he said. "When they were published in the article, they were, as the passages just quoted from the judgment show, and as the journalists must have appreciated, no more than unsubstantiated unchecked accusations, from an unknown source, coupled with speculation. The only written evidence available to the journalists did not identify any police officer, let alone DS Flood, as the recipient of money from ISC at all, let alone for providing confidential information."

"The nature of the information contained in the Allegations is of considerable public concern in that it involves police corruption, but the weight to be given to that point is very severely reduced by the fact that the information is contained in the Allegations, which, as the journalists knew, were largely unchecked and unsupported," it said.

The Court ruled that without more checks and substantiation the story could not be protected by the Reynolds defence.

"Once one examines Lord Nicholls's factors in relation to this case, and indeed once one asks whether publication of the Allegations constituted responsible journalism, it seems to me that it is clear that the publication of the article, insofar as it included the Allegations, does not attract Reynolds privilege," said the ruling.

The High Court ruling said that the Reynolds defence should not be open to The Times's continued publication of the story on its website. Though the online version of the article carried a warning in red capital letters that the story was disputed, the High Court said that this did not exonerate it of responsibility for the piece's continued publication.

"The failure to remove the article from the website, or to attach ... a suitable qualification, cannot possibly be described as responsible journalism. It is not in the public interest that there should continue to be recorded on the internet the questions as to [DS Flood's] honesty which were raised in 2006, and it is not fair to him. It is not in the public interest," said that ruling.

Lord Justice Neuberger said that this opinion was "plainly right, and indeed appears to be consistent with the decisions of this Court and of the European Court of Human Rights".

"If the original publication of the allegations made against DS Flood in the article on the website had been, as the Judge thought, responsible journalism, once the Report's conclusions were available, any responsible journalist would appreciate that those allegations required speedy withdrawal or modification. Despite this, nothing was done," he said.