Out-Law News | 31 Jul 2013 | 4:59 pm | 3 min. read
Mr Justice Tugendhat said it is possible to determine that reasonable readers would consider online stories containing an update as being true at the time of reading the articles on subsequent dates.
The judge was ruling over what the 'actual meaning' of words initially published in a story on a newspaper website on 2 June 2006 could be said to be if they were read between 5 September 2007 and October 2009. London police officer Gary Flood has alleged that the Times' online story defamed him during this time.
The Times previously won a ruling at the Supreme Court in relation to the print version of the story. That Court had determined that the Times' printed story was justified in the public interest and that the newspaper's journalism was responsible, thus upholding the so-called Reynolds defence against liability for defamation.
However, allegations that the online version of the story was defamatory of Flood have still to be settled.
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. When Flood complained the Times added a notice to the article to state that 'this article is subject to a legal complaint'. Flood was investigated and neither criminal charges nor internal disciplinary charges were brought against him. The Times was told this in September 2007 but did not publish an update to the story at the time.
In October 2009 the Times added an update to the online story to report on the outcome of the investigation, which was overseen by the Independent Police Complaints Commission, after being told that it was obliged to do so by the Court of Appeal.
The Times has claimed that a "reasonable reader" of the online story at a time after the date of original publication would have considered the story to be "part of an archive" and referring to events true at the time of publication but not necessarily so in the context of subsequent events or circumstances. However, in the latest ruling, Mr Justice Tugendhat dismissed this view in light of the subsequent update.
"If the reasonable reader is a person who would treat the archive material as stating no more than what was the position at the time the material was originally published (in this case June 2006), then there would be no sense in the requirement to update the archive," the judge said in his ruling. "That is a requirement, as stated by Lord Neuberger, against which [the Times] first appealed to the Supreme Court, and then withdrew their appeal. I reject [the Times'] submission that the reasonable fair minded reader would understand that the allegations might, in the interim, have turned out to be ill founded, when the update does not suggest that."
The judge said that it was likely that those who accessed and read the Times' online story would have known that individuals employed to perform a public duty would be considered to be committing a criminal offence if they accepted a bribe to act corruptly in the course of performing that duty. However, he said that the Times' story "does not allege actual guilt" on the part of Flood.
"The article is about an investigation and not just about the making of allegations," Tugendhat said. "A statement that a claimant is under investigation cannot reasonably be understood as stating that he is guilty because if that were so it would be almost impossible to get accurate information about anything."
The Times has accepted that the words complained about by Flood are defamatory, but has claimed that its story should be considered to be "true in substance and in fact".
The judge said that the actual meaning of the defamatory words is that there were, both at the time of publication and during the period covering 5 September 2007 and October 2009 when the story was updated, "strong grounds" to believe that Flood had abused his position as a police officer by corruptly accepting bribes in return for passing on "highly confidential Home Office and police intelligence", that Flood had "thereby committed an appalling breach of duty and betrayal of trust" and a "very serious criminal offence".