A former high court judgement in the case of Flood v The Times Newspapers last year found that an article published by the Times reporting that Gary Flood, an officer with the Metropolitan Police, was suspected of receiving bribes, was protected by qualified privilege, based on the Reynolds test of responsible journalism.
It had, however, ruled that an online version of the story had lost this privilege after it failed to be updated to show the claimant had been cleared in a report by the Directorate for Professional Standards, and that the Independent Police Complaints Commission "had concluded that no action was warranted against the claimant".
But following an appeal heard in May this year, the court of appeal 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.
It was ruled that public interest was not enough of a defence to protect reports which give details of allegations against a person, beyond their name, from being sued for defamation.
Three appeal judges heard the cross-appeal by Flood, who sued Times Newspapers in 2007.
The judges upheld his claim that the newspaper should have only reported the information released by the MPS press office statement giving his name as an officer under investigation, and not sought to publish details of the allegations made against him.
Lord Justice Moore-Bick told the court the allegations could not be protected by Reynolds privilege.
"Although the journalists in this case had taken steps to ensure the accuracy of their reporting, I think Mr Price was right in saying they had taken few, if any steps to verify the truth of the allegations themselves. Moreover, the status of the information was no more than that of an uninvestigated and unsubstantiated allegation (...) The status of the information was, therefore, little greater than any allegation made to the police and currently under investigation".
They also dismissed the Times' appeal against the judgement that the electronic copy lost the defence of privilege if it was kept on the paper's website unamended after circumstances had changed.
Flood originally claimed the 2006 Times article led readers to believe there were strong grounds to suspect that Flood had abused his position as a police officer by corruptly accepting £20,000 in bribes in return for selling intelligence.
But Flood was cleared following an investigation by the IPCC.
Master of the Rolls, Lord Neuberger added: "The fact that an unidentified insider has given specific information which, if true, may incriminate a claimant, will very rarely be justifiable reportage (...) The fair balancing of Article 8 and Article 10 would normally require that such allegations should only be freely publishable if to do so is in the public interest and the journalist has taken reasonable steps to check their accuracy. If they are true, a claim for defamation will fail; if they are untrue, but their publication was in the public interest, and a reasonable check was carried out, there is good reason why a claim for defamation should fail, even though it is hard on the claimant; if they are untrue and their publication cannot be said to be in the public interest or no reasonable check was carried out, it seems quite unjust that the claimant should have no remedy in law”
The Times will now seek to secure an appeal at the supreme court.
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