Flood v Times Newspapers Ltd
Reference:  EWHC 2375 (QB);  EMLR 8
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 2 Oct 2009
Summary: Defamation - Allegations published in print and on website - Reynolds privilege - Preliminary issue - Police officer - Allegation of corruption - Police investigation - Anonymous ources
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James Price QC - Leading Counsel (Claimant)
Instructing Solicitors: Edwin Coe for the Claimant; in-house solicitors for the Defendant
The Claimant was a Detective Sergeant in the Metropolitan Police Service. Journalists working for the Defendant were informed by an anonymous source that Russian oligarchs had paid a police officer for information about extradition requests. The unnamed source further stated that the police officer, whose codename was “Noah”, “could be” the Claimant (whose surname was Flood) and that he had reported this to the MPS. In April 2006 the journalists concluded that the MPS might not be properly conducting an investigation into the Claimant. They thus approached the Claimant and other persons concerned with the allegations. This caused an investigation to commence.
In June 2006 The Times published an article headed “Detective accused of taking bribes from Russian exiles”. It was published in its print edition and on its website, where it continued to be published after the date of the print publication. The Claimant sued for libel over both print and website publications.
(1) Whether the original print publication was protected by Reynolds privilege;
(2) Whether those website publications were privileged after September 2007 when, despite the fact that the Defendant was informed that an investigation by the Independent Police Complaints Commission (“IPCC”) had exonerated the Claimant, the Defendant continued to publish the article as it had appeared on the first day of publication.
(1) Those publications up to the point when the Defendant was informed that the IPCC had exonerated the Claimant were privileged. This was largely because those publications reported upon the police investigation, which concerned a matter of public interest, the behaviour of police officers.
(2) Those publications which continued after the publication of the IPCC report could not be the product of responsible jouranlism because the responsible journalist would have updated the website article in order to point out that the Claimant had been exonerated.
Given that it is now accepted that the right to reputation is an Article 8 right, the statement of Lord Nicholls in Reynolds that: “Any lingering doubts should be resolved in favour of publication” no longer applied. Instead the court would have to carry out the balancing exercise between Articles 8 and 10, giving neither precedence.
This case demonstrates that media defendants need to beware that, if a story is to be kept on a website, it will need to be updated where there are material developments in that story, particularly, as here, where an investigation has given way to exoneration and the Defendant has been notified of this.