A newspaper has both won and lost ‘public interest’ qualified privilege defences in a libel case highlighting a crucial difference between print and online publication.

The Times won its argument that a defamatory article first published on 2 June 2006, about a police officer accused of corruption, was responsible journalism in the public interest, giving the newspaper a qualified privilege (QP) defence under the well-known case of Reynolds.

But the paper failed to persuade a High Court judge that its continued publication of the article online, after it was revealed in September 2007 that the officer had been cleared of wrongdoing, continued to be responsible journalism.

The ruling, in Flood v Times Newspapers, is an important addition to the law on so-called ‘public interest’ or ‘responsible journalism’ QP, developed over the last decade in cases such as Reynolds, Jameel, and Charman. (See HTFP, November 2007).

The claimant in the case, which is ongoing, is Gary Flood, a Det Sgt in the Metropolitan Police’s Extradition Unit.

The Times reported that Scotland Yard was investigating allegations that a British security company with wealthy Russian clients paid a police officer in the Met’s Extradition Unit for Home Office and police intelligence concerning moves by Moscow to extradite some of Russia’s “most wanted men living in Britain.”

Mr Flood was named as the officer under investigation. The judge noted that the paper published its article after months of enquiries by an experienced investigative journalist and an experienced editorial team before the result of the police investigation had been announced.

Prior to publication, police confirmed they had had sufficient evidence to obtain a search warrant to raid Mr Flood’s home and investigate.

The judge, Mr Justice Tugendhat, said the case required the right balance to be struck between the right to reputation and the legitimate aims of investigative journalism in the public interest.

Regarding the print edition of the article, the judge said: “I uphold the defence of qualified privilege in respect of the publication in The Times newspaper of 2 June 2006.

“The story was about a police investigation into an allegation that an officer in the extradition unit had been corrupted by a former police officer now working on behalf of very wealthy and controversial Russians living in England.

“That was a story of high public interest. The purpose of publishing the story was to ensure that that investigation was carried out promptly. That too was a matter of public interest.”

The judge said that naming Mr Flood had the “legitimate aims” claimed for it by the main author of the article, Michael Gillard. Those aims were: adding to the credibility of the story, preventing suspicion from falling on other officers, and attracting potential witnesses.

The judge added: “Weight should in this case be given to the professional judgment of the editor and the journalists. There is no indication that the decision to publish the article in the form it was published on 2 June was made in a casual, cavalier, slipshod or careless manner.”

The judge was unimpressed, however, that the article continued to be published after the newspaper knew the officer had been cleared, with merely the following brief tag added to one version of the copy that was accessible to readers: ‘This article is subject to a legal complaint.’

The judge said a defamatory article in an online archive could become “like a tattoo.”

He said: “An old defamatory publication may permanently blight a person’s prospects.”

He said it was clear after September 2007 that the investigation had cleared Mr Flood with no disciplinary proceedings taken against him. The status of The Times’ information which formed the basis of the original article had altered, yet the paper had not updated its archived report with anything besides the tag mentioned above.

Since it was clear by September 2007 that no evidence against Mr Flood had come to light, the judge said The Times could no longer argue that its continuing publication of the online article included a “fair representation of the claimant’s side of the story.”

“The failure to remove the article from the website, or to attach to the articles published on The Times website a suitable qualification, cannot possibly be described as responsible journalism,” said the judge.

The QP defence for the online article therefore failed “from at least September 2007.”

As regards the print edition, the case was another good result for the media in the same month in which Newsquest won a useful ruling on publishers’ liability for user-generated content (See HTFP last week).

As to the online version, however, it shows judges are still enthusiastically applying the ‘multiple publication rule’ to internet publication (for more, see HTFP 22.09.09) and publishers are likely to lose any ‘public interest’ QP defence for website articles unless they respond adequately to changed circumstances and update archived online copy appropriately.