Press freedom defeat continues to sting

22 July 2010 by

Gary Flood

The fall-out from last week’s Court of Appeal judgment in Flood v Times Newspapers Ltd continues as the Times’ long-standing in-house lawyer parts company with the newspaper, and commentators remain unsure as to whether the case marks a significant blow for press freedom.

We posted last week on the Flood case, in which a police officer accused of taking bribes won his battle to prevent the Times relying on the Reynolds defence, which allows allegations to be reported even if they turn out to be wrong. The well-known and much used defence arises from the 1999 case of Reynolds v Times Newspapers in which the House of Lords (now the Supreme Court) extended the defence of qualified privilege to cover the media. Lord Nichols also provided 10 criteria which should be taken into account when deciding whether the defence applies (see the end of his judgment). Since 1999, the defence has been an important weapon in the press’ armoury in libel cases, and has undoubtedly led to greater press freedom.

As a result of the Court of Appeal judgment, the Reynolds defence may now be in jeopardy. Commentators are undecided as to the likely impact of the case, but the fact that Alastair Brett, the Times’ in-house lawyer of 33 years service, has now left his post suggests that the result was not well received by the newspaper. Inforrm have posted an “appreciation” of the media lawyer, who has been at the forefront of press-freedom law for decades, including groundbreaking cases such as the Spycatcher litigation. Joshua Rozenberg also laments the sacking of the “legendary lawyer” and guesses that he may have been “sacked for losing too many test cases and costing his employers too much money“.

The Flood judgment has been received with varying degrees of dismay from media commentators. The Inforrrm Blog posted that “It seems to us that it shows that outside the special category of “reportage”, the reporting of allegations will only be protected by Reynolds if proper steps are taken to verifyThe case seems to be close to the line on the “verification issue”. Overall, it demonstrates how difficult the issues concerning “responsible publication” can be in practice.” Inforrm also point out that the case may be appealed to the Supreme Court, which may ultimately reverse the position.

Meanwhile, Siobhain Butterworth, a finance lawyer who writes for the Guardian, is worried that the judgment may entail a death knoll for the Reynolds defence:

Those who thought the legal landscape was altered radically by Reynolds and Jameel appear to have been quite deluded. Reading the court of appeal’s judgment in Flood, I’m left wondering whether the defence of Reynolds privilege – also known as the responsible journalism defence and the Reynolds public interest defence – might be a figment of the imagination. There is a danger that this defence is only theoretically available and then only in a perfect world.

The status of the Reynolds defence is now unclear. This leaves the media in a difficult and unsatisfactory position, not knowing whether an article which could have been confidently published last week may now expose it to the risk of being sued in libel. It would seem that the Supreme Court will need to weigh in, preferably on this case, to unmuddy the waters. If not, then the Government’s much heralded libel reforms may have to include a statutory restatement of the Reynolds defence, which would leave it safe from future judgments such as Flood.

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