Supreme Court

The Supreme Court will consider whether the Court of Appeal’s refusal to uphold the defence of qualified privilege 'was in conflict with established principles'

Credit: Fiona Hanson/PA

An appeal sought by the Times of a libel judgment made against it last year has begun in the Supreme court today (17 October), the final court of appeal for civil cases in the UK.

The Times announced in July last year it would seek to appeal a judgment which found the newspaper was not entitled to a defence of 'Reynolds privilege', a defence available where a story has resulted from "responsible journalism" and is in the public interest.

A high court judgment in 2009 in the case of Flood v The Times Newspapers, found that an article published by the Times, reporting on a police investigation into allegations against Gary Flood, an officer with the Metropolitan Police, was protected by qualified privilege, based on the Reynolds test of responsible journalism.

However it found that an online version lost this privilege after it failed to be updated to show the claimant had been cleared.

The case was heard again in the Court of Appeal in May 2010, which overturned the first ruling and upheld the second, saying the reporting of allegations in the original newspaper article also failed to be protected by the Reynolds privilege.

The newspaper was told it should have only reported the information released by the MPS press office, identifying him as an officer under investigation, and not details of the allegations made against him.

According to the International Forum for Responsible Media blog, this week's hearings are only the second time in history that the court has looked at the defence of "responsible publication in the public interest", the first being Reynolds v Times Newspapers in 2001.

A case listing on the Supreme Court website says the case, which is also due to be heard tomorrow, will ask whether the Court of Appeal’s decision not to uphold the defence of qualified privilege "was in conflict with established principles and with findings of fact made by the trial judge" and "whether the defence should continue to apply to online publication without amendment to reflect the conclusion of the investigation to which it referred".

Media law consultant David Banks said the appeal may help to make the Reynolds defence easier to understand.
 
"The case hinges on the reporting of allegations made against someone and the need to verify those allegations by a publisher.
 
"The Times had qualified privilege for the police statement regarding the investigation concerning the claimant, but it relied on Reynolds to defend its reporting of some of the detail of the allegations made. This was upheld at first instance, but overturned on appeal by the claimant.
 
"The Supreme Court hearing should clarify what degree of verification of an allegation is expected of a publisher who wishes to claim Reynolds. Reynolds is not an easy defence, but this appeal might make it easier to understand. Whether it will be easier to claim rather depends on the outcome."
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