Summer is usually a quiet time at the High Court, with Judges and barristers off sunning themselves in the South of France; a peaceful calm tends to descend over the Westerly end of Fleet Street where the Royal Courts of Justice are found.
But this summer the picture has been quite different, particularly for media lawyers.
The David Miranda case has filled many column inches with debate and discussion. However, less has been said about two libel decisions made at the end of July – just before the summer break. Neither of them went in favour of the publisher, The Times in the first and the Sunday Times in the second.
The first case was a trial solely about meaning in the long-running saga of Flood v Times Newspapers which has now earned itself the suffix “No. 2”.
By way of a re-cap, this claim was brought by Sergeant Gary Flood in respect of an article, published in 2006 in The Times newspaper and also on its website, entitled “Detective Accused of Taking Bribes from Russian Exiles.” In 2007 the Met concluded an investigation which found no evidence that Sergeant Flood was guilty of the conduct alleged by the article. This was accepted by the IPCC on 4 September 2007.
The Times ran a defence of Common Law, or Reynolds Qualified Privilege – known to its friends as the ‘defence of responsible journalism’. It was largely successful and Flood (No. 1) became renowned for clarifying what lengths a journalist must go to in order to verify an allegation if they wish to rely on this defence.
However, the Judge ruled that The Times could not rely on Reynolds to defend the continued publication of the online article after the findings of the IPCC investigation had been published. Upon publication of the IPCC decision, The Times had qualified the online article with a notice which read “this article is subject to a legal complaint” but no further article, or update to the original (reporting the outcome of the investigation), was published until 2009.
Accordingly, the libel claim in relation to the post 5 September 2007 publication of the online article, survived and became Flood (No. 2). This summer’s hearing solely concerned the meaning of the website publication.
The Times sought to justify a meaning that Sergeant Flood was the subject of an internal police investigation and that there were grounds which objectively justified a police investigation into whether he had received payment in return for passing confidential information about Russia’s possible plans to extradite Russian oligarchs.
Sergeant Flood advanced a higher meaning, claiming that the article meant that at the time of publication (i.e. given an online article is currently ‘published’ every time it is viewed, this meant even following the IPCC ruling) there was reason to suspect or have strong grounds to believe he’d abused his position as a police officer, corruptly accepted bribes from Russia’s most wanted suspected criminals in return for confidential intelligence about attempts to extradite them, that he had therefore committed an appalling breach of duty and a very serious criminal offence.
The Judge found in favour of Sergeant Flood and even accepted his higher meaning that there were “strong grounds to believe” as opposed to “reason to suspect” the allegations made about him.
The Judge held that readers of archive material can treat it as speaking at the date on which it is being read. The addition of the warning placed on the article by the Times did not improve the position because it was unclear who had made the complaint and it led to an inference that the article was being updated and would have included the most up to date information available.
This case puts the burden on publishers to ensure the continuing accuracy and fairness of their online content. It also stresses the importance of detail and clarity in any qualifications to online articles. It may be that the significance of this case is short-lived because the new Defamation Act, due this autumn, introduces a ‘single publication rule’ in relation to online content.
For the time-being though, it would definitely be wise to keep an eye out for updates such as the quashing of convictions, successful appeals and to follow-up stories (linking the original article clearly to the update) even when they appear to have reached their natural conclusion.
To be continued….for the second of the summer’s less talked about media cases, please see next fortnight’s law column.