Story in online archives should be amended or removed when ‘responsible journalism’ defence ceases to apply – Flood v Times Newspapers, Court of Appeal

This case involved a defamatory report containing allegations about Flood, a policeman. At the time of the story being published, The Times Newspapers argued that it had a defence called ‘Reynolds privilege’ (also known as ‘qualified privilege’). This defence refers to responsible journalism. In order to benefit from that defence, publication had to be in the public interest and 10 steps had to be considered. Those steps included the seriousness of the allegation, the source of the information and the steps taken to verify it.

Subsequently, it became clear that the Metropolitan Police Service did not have evidence to proceed with a criminal prosecution against Flood. However, despite that change of circumstances, The Times continued to keep the story in its online archive.

The High Court said that The Times did not have a defence of responsible journalism at any stage. Allegations of police corruption would be in the public interest, but the mere fact that allegations were being investigated should not mean that people could publish details unless publication would be in the public interest and the journalist had taken reasonable steps to verify their accuracy.

That could have been the end of the matter, but the court went on to give its opinions about the act of continuing to keep the story in the online archive. The court said that even if the ‘Reynolds privilege’ defence would have been available previously, it would have been lost when The Times continued to leave the story online without any appropriate amendment or qualifying note. It dismissed two arguments put forward by the newspaper: one was that it did not need to put a note or qualification on until the parties agreed to the exact form of wording; the other was that the defamed person failed to respond to a letter stating an assumption that no change would be made. Even if the defamed person’s refusal to co-operate was unreasonable, it was still for the person who had published the defamatory material to come up with satisfactory wording.