Queen’s Bench Division
Published October 23, 2009
Flood v Times Newspapers Ltd
Before Mr Justice Tugendhat
Judgment October 16, 2009
An article which attracted qualified privilege when printed in a newspaper
could lose that privilege if its electronic form was kept on the paper’s
website after circumstances had changed but the article was not modified to
reflect that change in facts. Thus while an article in The Times
published on June 2, 2006 was privileged, publication on its website after
September 5, 2007 was not.
Mr Justice Tugendhat so held in the Queen’s Bench Division as a preliminary
issue in an action for defamation brought by the claimant, Gary Flood,
against the defendant, Times Newspapers Ltd.
Mr James Price, QC and Mr William Bennett for the claimant; Mr
Richard Rampton, QC and Ms Kate Wilson for Times Newspapers.
MR JUSTICE TUGENDHAT said the claimant maintained the Times article
meant there were strong grounds to believe, or alternatively that there were
reasonable grounds to suspect, that he had abused his position as a police
officer with the Metropolitan Police 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 intelligence about attempts
to extradite them to Russia to face criminal charges.
The Times had pleaded both justification and qualified privilege,
maintaining that in the circumstances the publication was in the public
interest and its journalists acted responsibly in composing and publishing
it: Reynolds v Times Newspapers Ltd (The Times October 29,
1999; [2001] 2 AC 127).
His Lordship gave a detailed account of the course of the journalists’
investigation of the allegations, and those carried out by Michael Gillard,
senior, father of one of the two journalists responsible for the article,
Michael Gillard and Jonathan Calvert.
The journalists contended that the police were alerted to the allegations
about the claimant when an insider at ISC Global (UK) Ltd, a London-based
security firm with wealthy Russian clients, revealed that payments had been
made to a police officer code-named Noah. The claimant’s version was that
the journalists themselves had tipped off the police. ISC was run by Keith
Hunter, a former police officer and friend of the claimant.
There was no general rule that it was against the public interest for the
media to engage in investigative journalism on a matter which was, or, in
the media’s view, should be the subject of a police investigation.
This was not a case where the public interest in there being no interference
with a police investigation was so great that a public interest defence
would fail on the facts.
There was no evidence that the journalists investigating the accusations had
interfered with the course of justice or with the police investigation. In
his Lordship’s judgment it could not be a general principle that a
journalist was obliged to desist from asking for comments of a person when
they found out that he was subject to a police investigation.
Even if the police investigation had been precipitated by the journalists’
inquiries, that would not have been a reason why they should not have
reported it. The Times was not simply reporting that they had made
allegations to the police. What they were reporting was that there was an
investigation by the police.
If, as here, a journalist did not disclose his source, it might be very
difficult for the court to assess whether the inquiries made by the
journalist were, judged objectively, sufficiently careful inquiries which
reasonably justified a conclusion. That was not the same as investigating
what further information the publisher might have received if he had made
more extensive inquiries.
The question whether there was corruption of police officers by wealthy
foreigners resident in England was a matter of high public interest. It was
similarly a matter of high public interest that allegations of such
corruption might not be being investigated in a timely fashion by the police.
The naming of the claimant was legitimate, adding to the credibility of the
story, preventing suspicion from falling on other officers and attracting
potential witnesses.
There was no indication that the decision to publish the article in the form
it was published on June 2 had been made in a casual, cavalier, slipshod or
careless manner. The fact that the journalists had not disclosed their
sources was of little significance. They had documentary evidence that ISC
had made the payments to Noah.
His Lordship said the right to reputation was of public importance, and
applied to the claimant’s position. The defendants had been criticised for
assuming there was no good reason why the police were taking time to
investigate.
Just because a police officer had the misfortune to have to incur personal
expenditure on private matters, and just because he had remained friends
with a former police officer who was now engaged in a business with wealthy
clients who might be interested in confidential information, was not a
sufficient reason for suspecting a police officer of corruption.
Those matters went to the quality of the editorial judgment, but did not take
the case outside the range of editorial judgment which the court was
required to respect.
The real issue was whether the journalism was responsible in the sense of
whether the publication of the article, as and when it was published, was
fair to the claimant, that was to say, whether it was a proportionate
interference with his right to reputation given the legitimate aim in
pursuit of which the publication was made.
His Lordship upheld the defence of qualified privilege in relation to the
article of June 2, 2006.
With regard to the website publication, His Lordship observed that while the
article appearing on the internet was annotated to record that the article
was subject to a legal complaint, such publication was capable of damaging a
person’s reputation forever.
Eight years had elapsed since the leading decision on internet publication, Loutchansky
v Times Newspapers Ltd (Nos 2-5) (The Times December 7, 2001;
[2002] QB 783), and the amount of material on the internet had greatly
increased. What could be found on the internet about a person might become
like a tattoo, permanently blighting a person’s prospects.
On September 14, 2007, Alastair Brett, legal manager of Times Newspapers Ltd,
noting that the investigation had concluded and that the police’s
Directorate of Professional Standards had found “insufficient evidence to
proceed with any criminal prosecution or internal police disciplinary
process”, had offered to publish a brief news item to that effect.
Solicitors for claimant responded that that added insult to injury, saying
there was no evidence at all. Their draft form of apology was unacceptable
to Times Newspapers.
Each party was entitled to reject the form of words tendered by the other in
correspondence, but the risk in relation to the Reynolds public
interest defence lay on Times Newspapers, not on the claimant.
It was for the defendant to make good his defence. It might well be good
practice to seek to agree a form of follow-up publication, but if there was
no agreement, the publisher must take his own course and then defend it if
he could at trial.
Once the investigation had concluded, the claimant’s case included its
favourable outcome and Times Newspapers could no longer state that the
website publication was a fair representation of the claimant’s case. Nor
could they rely on any of the public interest factors which they relied on
in relation to the print publication.
The failure to remove the article from the website, or to attach a suitable
qualification to the articles published there, could not possibly be
described as responsible journalism. It was not in the public interest that
there should continue to be recorded on the internet the questions as to the
claimant’s honesty which were raised in 2006 and it was not fair to him.
The defence of qualified privilege succeeded in respect of the print
publication and website publications made up to September 5, 2007. It failed
in respect of the website publication made thereafter.
Solicitors: Edwin Coe; Mr Alastair Brett, Wapping.
