Full case report
Flood v Times Newspapers Ltd (No.2)
Reference  EWHC 2182 (QB)
Court High Court, Queen's Bench Division
Judge Tugendhat J
Date of Judgment 25 Jul 2013
Defamation – libel – natural and ordinary meaning – innuendo – Chase Levels – meaning as a preliminary issue – online publication
C was a police officer and D was the publisher of The Times newspaper. The hearing was a trial of meaning as a preliminary issue and of C’s application for permission to amend his Particulars of Claim. Permission to amend was given at the conclusion of the hearing itself.
The article complained of was entitled “Detective Accused of Taking Bribes from Russian Exiles”, and was first published in The Times on 2 June 2006 and thereafter on the newspaper’s website. Proceedings were issued, and D advanced two defences: a Reynolds defence and justification.
In 2007 the Metropolitan Police Service concluded an investigation into the Claimant which was accepted by the Independent Police Complaints Commission, finding no evidence that C was guilty of the conduct alleged by the article. D was notified of the outcome on 4 September 2007. The article carried the qualification that “this article is subject to a legal complaint”, but no further article, or update to the original reporting the outcome of the IPCC investigation, was published until October 2009.
The Reynolds defence was tried as a preliminary issue before Tugendhat J in July 2009 and judgment was handed down on 16 October 2009 ( EMLR 8). The J held that the Reynolds defence succeeded in relation to the print edition, and in relation to the website until 5 September 2007, but it failed in respect of later publications on the website.
Both parties appealed to the Court of Appeal, where C succeeded, the J’s judgment on the availability of Reynolds privilege pre-5 September 2007 being reversed, and D failed, the CA upholding the J to the effect that the privilege was not available post-5 September 2007 ( 1 WLR 153).
D appealed to the Supreme Court, which restored the J’s judgment, holding that the publications up to 5 September 2007 were protected by Reynolds privilege ( 2 AC 273). D withdrew its appeal on the post-5 September 2007 publication.
C’s claim was therefore confined to publications on D’s website from 5 September 2007 to October 2009.
C attributed to the article the meaning that there were, and at the date of publication of the article online complained of there continued to be, strong grounds to believe, or alternatively that there were reasonable grounds to suspect, that the claimant: had abused his position as a police officer with the Metropolitan Police’s Extradition Unit by corruptly accepting £20,000 in bribes from some of Russia’s most wanted suspected criminals in return for selling to them highly confidential Home Office and police intelligence about attempts to extradite them to Russia to face criminal charges; had thereby committed an appalling breach of duty and betrayal of trust; and had thereby also committed a very serious criminal offence.
C pleaded that the allegation of commission of a very serious offence was an innuendo meaning, and pleaded in support of it that where a person who is employed to perform a public duty takes a bribe to act corruptly in discharging that duty he commits a criminal offence under common law.
D sought to justify a meaning that the claimant was the subject of an internal police investigation; and that there were grounds which objectively justified a police investigation into whether the claimant received payment in return for passing confidential information about Russia’s possible plans to extradite Russian oligarchs.
What was the meaning of the website publication during the period complained of?
a. Could the court infer the knowledge pleaded in support of the innuendo meaning?
b. What was the level of seriousness of the allegation?
c. What was the effect of the passage of time on the meaning?
Accepting the higher of C’s pleaded meanings (“strong grounds to believe”):
a. Anyone reaching the archive and being sufficiently interested to read the words complained of would have known that where a person who is employed to perform a public duty takes a bribe to act corruptly in discharging that duty he commits a criminal offence.
b. The first impression given to the reader by the article was one which emphasised the allegation that a police officer in the extradition unit had taken payment from wealthy Russians for sensitive information. The repetition rule would have made this an allegation of guilt, but the effect of the article as a whole moderated this impact. The article set out the allegations and what was said to be the evidence against C, including a close friendship with a partner in the firm which had been paid substantial sums by wealthy Russians. This reference suggested grounds to suspect or believe that C had taken bribes.
c. Readers of archive material may not necessarily just treat it as historical, but also as speaking at the date on which it is being read. The addition of the warning by D did not improve the position from C’s point of view, as it did not indicate from whom the complaint had come, and it led to an inference that any more recent information about the outcome of the investigation would have been added to the article. The requirement to update the archive referred to by Lord Neuberger in the CA would be meaningless if the reasonable reader treated the material it contained as stating the position at the time of the original publication.
The decision is significant in relation to the meaning of online publications which persist after their original print versions. The principle that archive material, which is often very extensive on newspaper websites, may be treated as speaking at the date on which it is read is one which arguably creates a burden on newspapers to ensure continuing accuracy and fairness in their online content.
The requirement that newspapers update their archived articles with qualifications to reflect changing facts is well-established in relation to Reynolds privilege, following the decision in Loutchansky v Times Newspapers Ltd & Ors  QB 783. This judgment indicates the importance of how such qualifications are added in terms of the meaning of online publications. Detail and specificity are important, as is the need to avoid inadvertently giving the impression that allegations have not in fact been investigated or resolved. It seems that a misleading qualification may be worse than none at all.
Edwin Coe LLP for C; TNL for D
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