Update: media

It's official: there will be radical changes made to our defamation and privacy laws. Probably. Following the introduction of Lord Lester's private defamation bill the government has now revealed plans for a review of defamation law in an attempt to address the concerns over libel tourism among other things '“ no doubt an act of support to the US which has outlawed tourism by blocking foreign defamation judgments from applying to Americans. Lord Lester is reported to be in heaven, so all's right with the world.

With a clear nod of approval to the Court of Appeal judgment in British Chiropractic Association v Dr Singh [2010] EWCA Civ 350 (see solicitorsjournal.com, 15 April 2010), justice minister Lord McNally said: 'We need investigative journalism and scientific research to be able to flourish without the fear of unfounded, lengthy and costly defamation and libel cases being brought against them.'

Lord McNally has also indicated that there was a general consensus that legislation was needed to clarify, consolidate and remove some of the more dangerous aspects of the way case law has developed in relation to privacy. Lord McNally's comment that 'super injunctions' have 'grown up by stealth rather than by considered desire of parliament', following on from the Master

of the Rolls setting up a committee to investigate them, indicates the intention of the coalition to give serious consideration to some form of codified privacy law. Is it a good idea, or will it merely become a nice little earner for cash-strapped privacy lawyers who will have to decide what it all means?

Coincidentally, at the same time as these reforms, there are also demands for sweeping changes to the Press Complaints Commission '“ the independent, self regulatory body for the press '“ following a governance review published in July suggesting that the PCC should display greater clarity about how complaints are considered and how rulings can be challenged and that it do more to demonstrate the effectiveness of its current sanctions, ensuring that they are properly exercised and understood.

No more trivial pursuits

The clear demand for reform in defamation ironically follows the implementation of much reform in recent court decisions. Fair comment defences received a boost following Singh and now Mr Justice Tugendhat in Thornton v Telegraph Media Group Ltd [2010] EWHC 1414 has done it for media defendants on meaning with a damning verdict on 'trivial' libel actions, allowing a summary judgment application by The Telegraph. He ruled that writers were comparable to professional sportsmen and were free to direct different products to different readerships or markets. To impute to a writer that they wrote to one standard rather than another could not in itself be defamatory. Seriousness must be central to a claim for libel and trivial claims discouraged.

Following the refusal of Sir Charles Gray to allow an appeal against his fair comment decision in Sarah Thornton v Telegraph Media Group Limited [2009] EWHC 2863 over a book review by Lynn Barber, The Telegraph made an application for summary judgment, or alternatively a ruling on meaning under CPR PD53 paragraph 4.1, in relation to one part of the words complained of in the review by Lynn Barber of the book Seven Days in the Art World by Dr Thornton. Mr Justice Tugendhat was concerned with the allegation that Dr Thornton practiced 'reflexive ethnography', meaning she gave copy approval allowing interviewees the right to read what she said about them and alter it. This is a practice disapproved of by journalists.

The Telegraph argued that Thornton had no real prospect of establishing the relevant words were defamatory of her and/or were not capable of being defamatory. David Price, The Telegraph's advocate, argued that to be defamatory the words had to cross a threshold of seriousness so as to exclude trivial claims, and to be interpreted consistently with article 10(2) of the European Convention. Tugendhat J agreed and ruled that the claim was essentially a claim for business or professional defamation as opposed to being directed to members of society generally. There was not any claim of disloyalty or hypocrisy. The copy approval allegation was not capable of being a personal libel. It was not highly reprehensible or reprehensible at all, and did not bear any meaning defamatory of Thornton on a personal basis and/or fell below the threshold required '“ i.e. it was trivial. If she had any remedy at all it was in malicious falsehood. The application for summary judgment was granted.

In Maharaj v Eastern Media Group Limited [2010] EWHC 1294 (QB), where a defamation claim involved reliance or meanings including the concept of an imposter in a religious group, the court held, in determining preliminary issues, that matters of a religious or doctrinal nature in the pleadings raised issues not within the court's jurisdiction as the court was not in a position to determine whether a person was morally and religiously fit to carry out spiritual and pastoral duties of his office. That determination was a religious function. The question of whether or not the claimant was or was not fairly described as 'impostering' was not one that could be severed from the central question of what applied in respect of Sikh doctrines and traditions.

Qualified privilege: police corruption

So, the media have been making considerable inroads not just in relation to having the clarion call for reform answered but also in the courts themselves. But it has not gone all the media's way, freedom of expression does not win all as Flood v Times Newspapers Limited [2010] EWCA Civ 804 graphically demonstrates. The Court of Appeal overturned a High Court decision (by Mr Justice Tugendhat) that disputed allegations, appearing both in the paper and on the website, were protected by Reynolds privilege and upheld the finding that continued publication of the article on The Times website without suitable qualification could not attract Reynolds privilege.

The claimant was a detective sergeant in the extradition unit of the Metropolitan Police Service (MPS). In June 2006, an article was published containing bribery allegations about DS Flood sourced from a police statement and embellished with detail from an informant. The article alleged, in a detailed account, that Flood had made unauthorised disclosure of confidential information about extradition warrants from Russians to a British security company for a bribe.

In 2007, the MPS wrote to The Times to tell them that there was insufficient evidence to proceed with any prosecution or any further disciplinary proceedings against DS Flood, which meant that he was therefore cleared of any association with taking bribes.

The article on the website remained and was unchanged. Flood sued for libel over the original article and its continuing publication on this website, and in a first instance decision Tugendhat J found that the print and website publications of the 2006 article were both protected by Reynolds privilege at the time that they were published. They were clearly in the public interest, but the continued publication of the article after The Times had been told of the outcome of the investigation without any attempt to amend was not so privileged.

The Times appealed to the Court of Appeal on the basis that the Reynolds defence should extend to protect them in relation to the continued publication of the article on the website (effectively a re-run of Loutchansky [2001] EWCA Civ 1805, which it lost). Flood cross-appealed that the publication of the allegations about him in the original article could not be said to be responsible journalism in accordance with the criteria laid down by Lord Nicholls in Reynolds because of the failure of the journalist to make any attempt to verify the allegations published '“ simply relying on the informant's allegations.

The court agreed with Flood's counsel that while allegations of police corruption were in the public interest the mere fact that allegations were being investigated was not sufficient to enable the media to publish details of them unless that publication was not only in the public interest but also that the journalist had taken reasonable steps to check their accuracy.

Lord Neuberger (Master of the Rolls) accepted that a journalist should be relatively free to report matters where there was a public interest but it came with a responsibility attached of taking reasonable care to verify the accuracy of available information and it was hard to see why such principles should not apply to publication of allegations made against an individual simply because those allegations were being investigated by the police. The allegations were serious and their inclusion in the article as well as the undisputed information provided by the MPS was clearly going to have far greater effect on Flood's reputation. There did not seem to be evidence of adequate enquiry that the disputed allegations were true.

As to whether a Reynolds defence continued after The Times appeal, the court quickly dismissed such a suggestion and followed the decision of the court below and the judgment in Loutchansky and the subsequent ECHR decision in Times Newspapers Limited v UK [2009] ECHR 451. Even supposing the original publication of the allegations made against Flood in the article on the website had been responsible journalism, once the MPS conclusion had been reached matters changed.

A finding that there was insufficient evidence to proceed with any prosecution or to take disciplinary proceedings against Flood required any responsible journalist to immediately appreciate that the allegations as originally made required speedy withdrawal or modification. This had not been done.

It was not a matter of editorial judgement with regard to the publication with which the court could not interfere as argued. The protection provided by section 15 of the 1996 Defamation Act in relation to the MPS statement did not extend to relieving The Times of its obligation to display responsible journalism.

Flood in the archive

Flood has reaffirmed Loutchansky and stated the obvious in relation to defamatory stories published and remaining on a website.

There may be a defence of qualified privilege initially '“ though not here as the court found '“ but in any event a protected article must be changed and edited if subsequent events introduce new facts or materially change the nature of allegations or facts contained in the original (here the MPS dropped the investigation into Flood).

Qualified privilege is not a defence set in stone which protects the original forever. Every online publication must be viewed at the time of publication and in the light of the fact that times change. Sadly, The Times didn't, and paid the penalty. By appealing, it opened the door for a cross-appeal in relation to their successful defence and ended up losing everything; a decision that is a nightmare for media archivists.