The Times has won its appeal against a decision in a libel battle between a police officer and the newspaper over the Reynolds defence of responsible journalism.
The Supreme Court unanimously overturned a July 2010 finding by the Court of Appeal that Mr Justice Tugendhat had got it wrong when, in October 2009, he said that a story reporting that Metropolitan Police Detective Sergeant Gary Flood was the subject of an investigation into possible corruption was protected by Reynolds privilege.
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Flood had sued The Times over the June 2006 article, which reported that Scotland Yard was investigating allegations that ISC, a British security company with wealthy Russian clients, had paid a police officer in the extradition unit for sensitive information, and named Flood as the officer under investigation.
The investigation subsequently found that there was no evidence that Flood had acted corruptly.
The Court of Appeal held that the story could not be protected because it contained information which was extremely damaging to Flood’s reputation, and because the journalists had failed to verify the allegations it contained.
Times Newspapers argued in the Supreme Court that the appeal court made fundamental errors, including failing to accept it was bound by two previous decisions not to interfere with a judge’s assessment of the balance between competing rights under the European Convention on Human Rights.
It said that, if reports on matters of public interest were to be confined in the way suggested by the Court of Appeal, there was a danger that journalistic investigations of possible wrongdoing, particularly by those in authority, would not be undertaken because of the obvious likelihood that its products would not be published.
It argued that the level of verification achieved by the journalists exceeded that required by law. Giving their ruling today, five justices said that the publication of the article was protected.
In the public interest
Lord Phillips said that the seriousness of the allegation being made was an important factor in the assessment of where the balance was to be struck between the desirability that the public should receive information and the potential harm caused if an individual was defamed.
Flood’s main complaint was not that the newspaper had named him as the person under investigation but that it had published details of the “supporting facts” placed before the police in support of the accusation.
The judge said that each case turned on its own facts and the overriding test was that of responsible journalism.
“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.
“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.”
A legitimate aim of publishing was to ensure the investigation was carried out promptly, he added.
It was also in the public interest that Flood should be named as he would be identified in any event by fellow officers and otherwise other members of the unit might come under suspicion.
On the question of verification, Lord Phillips said that the journalists were justified in concluding that there was a strong circumstantial case against the officer.
They 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 he had been guilty of corruption.
“Contrary to the decision of the Court of Appeal, I consider that the requirements of responsible journalism were satisfied.”