After the Flood

Has the decision of the Court of Appeal in Flood v Times Newspapers [2010] EWCA Civ 804 made the so called "Reynolds Defence" of qualified privilege based on responsible journalism unworkable?

The recent decision of the Court of Appeal in Flood v Times Newspapers has been greeted with dismay by many journalists who feel that it has unrealistically raised the bar on what constitutes "responsible journalism" into something approaching a counsel of perfection. After the House of Lords decision in Jameel v Wall Street Journal in 2007 many in the media started to believe that after an unpromising start where it could rarely be successfully relied on, the "responsible journalism" test laid down in the case of Reynolds a decade earlier was now being interpreted by the Courts with sufficient flexibilty for journalists to rely on the Defence with confidence where they had in good faith published defamatory allegations which ultimately turned out to be wrong but at the time had been published responsibly on a matter of public interest. The decision in Flood has been seen in the media as a retrograde step, further narrowing the scope for journalists to make their own editorial judgments about the level of detail to go into when reporting on matters of public interest such as ongoing police investigations.

In Flood the Times reported the fact that Scotland Yard were investigating allegations that an officer in the Metropolitan Police extradition unit, DS Gary Flood, had been corrupted and was taking bribes from Russian exiles. The Times published an article including a short statement from the police confirming that an unnamed officer was being investigated for making unauthorised disclosures in return for money. However The Times went further than the police statement and named Mr Flood as the officer being investigated and also set out the details of the allegations that had been made against him. After publication the allegations were subsequently investigated by the police and found to have no substance. DS Flood sued over the original publication in the newspaper and because the Times had taken no steps to amend or remove the article from its online archive after it had been made aware that the allegations were not true. In relation to...