Internet Libel: The Times Must Keep A’Changin

A High Court ruling on the Reynolds defence to libel proceedings highlights the importance of making online versions of published articles fit with later developments

In Flood v Times Newspapers Ltd [2009] EWHC 2375 (QB), Mr Justice Tugendhat has ruled in favour of The Times on their claim to the Reynolds defence (ie qualified privilege) in relation to their publication of an alleged libel in their newspaper on 2 June 2006. But he ruled against them on that claim to privilege in respect of the continuing web site publication of that same article.

The original Times article reported an investigation into a serving police officer, Gary Flood, on the basis that he was suspected of taking bribes for passing information to a security company. The claimant’s case is that the words complained of meant that there were strong grounds to believe, or alternatively that there were reasonable grounds to suspect, that he had abused his position as a police officer with the MPS extradition unit by corruptly accepting £20,000 in bribes from some of Russia's most wanted suspected criminals in return for selling to them highly confidential Home Office and police intelligence about attempts to extradite them to Russia to face criminal charges, that he had thereby committed an appalling breach of duty and betrayal of trust and had thereby committed a very serious criminal offence. The Times pleaded both justification and the qualified privilege under Reynolds. The justification issue was not before Mr Justice Tugendhat. As to justification The Times pleaded that ‘the Claimant was the subject of an internal police investigation and that there were grounds which objectively justified a police investigation into whether the Claimant received payments in return for passing confidential information about Russia's possible plans to extradite Russian oligarchs’; as to privilege, it set out the basis for the story and claimed ‘in the circumstances the publication of the article was in the public interest and its journalists acted responsibly in composing and publishing it’.

The Times drew no distinction in its Reynolds claim between the original publication and the continued web site publication. But Mr Justice Tugendhat thought that there was a crucial distinction and, despite the fact that a warning indicating that the article was subject to legal dispute was shown on the web site version, considered that more was required once the police investigation was completed. By early September 2007, The Times knew that the investigation had been unable to find any evidence to show that Flood had divulged any confidential information for monies or otherwise and that there were no recommendations made as to criminal or discipline proceedings. The claimant had returned to work and his suspension was over but no hint of that appeared on The Times web site. Consequently, the judge ruled (at [245]-[249]) that the defence of qualified privilege failed from early September:  

‘in relation to the website, TNL has not put forward anything to show that the continued website publication, without any updating or correction, met the requirements of responsible journalism as time went by. …Some of the factors that applied in relation to the print publication on 2 June 2006 apply to the website publications since then. But there have been significant developments since then. After September 2007 TNL knew that there had been an investigation which had been completed, and the outcome of it. The status of the information had therefore changed for the worse (Reynolds Factor 5). … TNL can no longer state that the website publication includes a fair representation of the Claimant's case (Reynolds Factor 8). His case now includes the favourable outcome to the investigation.

Nor can TNL rely on any of the public interest factors which they relied on in relation to the print publication (Reynolds Factor 2). … As already mentioned, one of the principal points of public interest advanced for the print publication was that Michael Gillard's purpose was to call for an investigation, and, when he learnt that there was one, to ensure that it proceeded in a timely fashion. That purpose had been fulfilled to TNL's knowledge by 14 September 2007, and The Times has not continued to call for an investigation, or otherwise explain the continuing public interest in the website publications.

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. It is not in the public interest that there should continue to be recorded on the internet the questions as to the Claimant's honesty which were raised in 2006, and it is not fair to him.’ 

The whole of the passage from the judgment which relates to web site publication (the judgment is available in full on www.bailii.org) is as follows: 

  1. As already noted, the claim is brought, not only in respect of the print version, but also in respect of the website version of the article. There are before the court two versions of the website printed out. The first was printed out by TNL. It is undated and bears at its top the following in capital letters:

"Warning this article is subject to legal dispute. It should not be relied on or repeated".

  1. The second version was printed off the internet during the trial on 13 July by the Claimant's lawyers. It is the result of a search for the words "Gary Flood" using an internet search engine. The second item in the list of results is:

"Detective accused of taking bribes from Russian Exiles. Being identified as Detective Sergeant Gary Flood. His home and office were raided… the relationship between Sergeant Flood and a former Scotland Yard Detective… operate with the enquiry. Sergeant Flood has not been suspended but his lawyer… Michael Gillard 02 June 2006 The Times".

  1. A click on that link brings up the article as set out at the start of this judgment. In addition to the words set out in this judgment there are immediately after the name Michael Gillard and the first paragraph of the text the following words, and no more:

"[this article is subject to a legal complaint]"

  1. The difference between these two versions has not been explained in evidence. But TNL have not disputed that the version printed out by the Claimant's lawyers is correct. I take it to be the version as it is currently available, whether or not it was available in that form at the time of the issue of proceedings.
  1. The internet is not a complete resource. It contains what people post on it. The Report is not posted on the internet, so far as the evidence before me discloses.
  1. Mr Price submits that where a defendant defends a website publication on the basis of Reynolds public interest privilege, he must do so by reference to the circumstances as they existed at the time of the website publication complained of, and he cannot simply rely upon the circumstances which prevailed at the time of the original publication, that is to say the circumstances at the time when the words were first published in any form.
  1. This was considered and decided upon by the Court of Appeal in Loutchansky v TNL Ltd (Nos 2-5) [2002] QB 783 at paragraphs 77 to 79 (upheld in Strasbourg in its judgment of 10 March 2009: Times Newspapers Ltd (Nos 1 & 2) v UK (Applications 3002/03 and 23676/03)). In that case the Defendant added the following rider to the website article there complained of:

"This article is subject to High Court libel litigation between Grigori Loutchansky and Times Newspapers. It should not be reproduced or relied on without reference to Times Newspapers Legal Department."

  1. At para 17 of the judgment it is recorded that the trial judge had held that "the defendants had no reasonable grounds to contend that [after a certain date] they remained under a duty to publish these articles over the Internet, nor could they sustain a separate argument for a special "archive" privilege" (the reference to "archive privilege" is explained in the citation from para 71, set out at para 230 below).
  1. The question whether the so called single publication rule applied in relation to Reynolds privilege was considered and decided in the judgment of the Court delivered by Lord Phillips of Worth Matravers MR at para 79:

"A subsidiary reason given by the judge for striking out the defence was that the defendants had repeatedly republished on the Internet defamatory material that was the subject of a defamation action in which they were not seeking to justify the truth of the allegations without publishing any qualification to draw to the reader's attention the fact that the truth of the articles was hotly contested. The judge considered that the republication of back numbers of "The Times" on the Internet was made in materially different circumstances from those obtaining at the time of the publication of the original hard copy versions in September and October 1999. We agree. The failure to attach any qualifications to the articles published over the period of a year on "The Times" website could not possibly be described as responsible journalism. We do not believe that it can be convincingly argued that the defendants had a Reynolds duty to publish those articles in that way without qualification. It follows that we consider that the judge was right to strike out the qualified privilege defence in the second action although not for the primary reason that he gave for so doing. For these reasons the Internet single publication appeal is also dismissed."

  1. The Internet single publication appeal in Loutchansky had arisen first on a different point. It had arisen out of an interlocutory order by which Gray J refused permission to the defendants to re-amend their defence in one of the actions to contend that "as a matter of law the only actionable publication of a newspaper article on the internet is that which occurs when the article is first posted on the internet", and so that the publication sued upon in that case was outside the one year limitation period. The judge had rejected that submission on the authority of Duke of Brunswick v Harmer (1849) 14 QB 185 and Berezovsky v Michaels [2000] 1 WLR 1004. The defendants submitted that he was wrong to do so. See Loutchansky paras 15-16.
  1. The defendants argued that, in relation to a book, the limitation period would in practice never expire if the single publication rule did not apply, and that this would be an unjustifiable restriction on a writer's freedom of expression, contrary to Article 10: Loutchansky para 65-71. The argument included in particular:

"71 Maintaining an archive of past press publications was a valuable public service. If a newspaper defendant which maintained a website of back numbers was to be indefinitely vulnerable to claims in defamation for years and even decades after the initial hard copy and Internet publication, such a rule was bound to have an effect on the preparedness of the media to maintain such websites, and thus to limit freedom of expression".

  1. The judgment continues as follows:

"72 In answer to these submissions Mr Browne started by emphasising that the principle in the Duke of Brunswick case 14 QB 185 that every publication of a libel gives rise to a separate cause of action is a well established principle of English law that was recognised by the House of Lords in Berezovsky v Michaels [2000] 1 WLR 1004. He submitted that this principle was not at odds with the Human Rights Convention. Article 10 recognised that the right of freedom of expression could properly be restricted "for the protection of the reputation or rights of others". The rule in the Duke of Brunswick case was part of the system of English law that balanced the right of freedom of expression against the entitlement to protection of one's reputation. If the defendants were exposed to liability in the second action they had only themselves to blame for persisting in retaining the offending articles on their website without qualifying these in any way."

  1. The Court upheld the submissions for the claimant:

"73 … In our judgment the crucial question in relation to this part of the appeal is whether the defendants have made good their assertion that the rule in the Duke of Brunswick case is in conflict with article 10 of the Human Rights Convention because it has a chilling effect upon the freedom of expression that goes beyond what is necessary and proportionate in a democratic society for the protection of the reputation of others.
74. We do not accept that the rule in the Duke of Brunswick case imposes a restriction on the readiness to maintain and provide access to archives that amounts to a disproportionate restriction on freedom of expression. We accept that the maintenance of archives, whether in hard copy or on the Internet, has a social utility, but consider that the maintenance of archives is a comparatively insignificant aspect of freedom of expression. Archive material is stale news and its publication cannot rank in importance with the dissemination of contemporary material. Nor do we believe that the law of defamation need inhibit the responsible maintenance of archives. Where it is known that archive material is or may be defamatory, the attachment of an appropriate notice warning against treating it as the truth will normally remove any sting from the material.

75 Turning to the defendants' wider argument, it is true that to permit an action to be based on a fresh dissemination of an article published long ago is at odds with some of the reasons for the introduction of a 12-month limitation period for defamation. But the scale of such publication and any resulting damage is likely to be modest compared with that of the original publication. In the present case, as the judge observed, the action based on the Internet publication is subsidiary to the main action.

76 The change in the law of defamation for which the defendants contend is a radical one. In our judgment they have failed to make out their case that such a change is required. The Internet single publication appeal is therefore dismissed."

  1. Whether or not the scale of a website publication, and any resulting damage, is likely to be modest compared with that of the original publication, will depend on the facts of each case. But the judgment in Loutchansky was delivered eight years ago, in 2001. Since then the use of the internet, and in particular of internet search engines has increased. What has also increased is the amount of material on the internet. In 2001 there were relatively few years of back numbers of newspapers available on the internet. Since then each year's publications have been added. In most cases, as time passes, the original print publication will become increasingly difficult to access, and would be forgotten. But the website publication will remain, and in some cases (where the fame of a person has increased) it may even be viewed with increasing frequency. So a person's reputation may be "damaged forever" in the words of Lord Nicholls in Reynolds at p201 cited in para 207 above. As I remarked in another case, quoting from an article by a well known media lawyer, what is to be found on the internet may become like a tattoo (Clarke (t/a Elumina Iberica UK) v Bain & Anor [2008] EWHC 2636 (QB) para 55). Some actual and prospective employers, and teachers, make checks on people by carrying out internet searches. An old defamatory publication may permanently blight a person's prospects. This may be so, even in those cases where the allegation has been authoritatively refuted, but the refutation is either not on the internet, or, where it is on the internet, its authority is not apparent, or is not credited, on the footing that there is no smoke without fire.
  1. Michael Gillard's evidence was in itself an illustration of the dangers of the view that there is no smoke without fire. In his evidence in this case he demonstrated at length his view that past allegations against serving or former police officers, even if rejected in proceedings in which these were investigated, remained relevant to his assessment of that police officer. I cannot give detailed examples of these matters without giving unjustifiable currency to defamatory allegations for which there is no evidence, but which were advanced under the protection of privilege which witnesses enjoy in court proceedings, and which the individuals concerned did not have an opportunity to comment upon.
  1. Loutchansky was, of course, before Jameel, but I see nothing in Jameel that casts doubt on this part of the judgment in Loutchansky, and Mr Rampton did not submit that there was anything. On the contrary, at the time Mr Browne was making his submissions in Loutchansky, he could base them only on the qualification of Article 10, namely that freedom of expression could be restricted "for the protection of the reputation or rights of others". The same argument today, assuming the recognition of reputation as an Aricle 8 right, is, if anything, stronger, since what is to be balanced is no longer a Convention right (Art 10) against a non-Convention right (reputation), but two Convention rights.
  1. Mr Rampton submits that the qualifications which appear on the website, in whichever form they appear, make clear who the complainant is, namely that it is the Claimant. I do not agree. The reader might well understand that the complainant is Mr Berezovsky, or one of the other Russians mentioned in the article, or Mr Hunter. There is nothing to state that it is the Claimant.
  1. Further Mr Rampton submits that TNL can rely on the fact that it offered to publish the outcome of the Report, but this was rejected outright. He relies on the exchange of correspondence that took place in September, as follows.
  1. On 14 September 2007 Mr Brett, Legal Manager of TNL, wrote that TNL had been notified the previous week by DPS that the investigation into the Claimant had been concluded and "there was insufficient evidence to proceed with any criminal prosecution or internal police disciplinary process". The letter includes an offer to publish what is called "a News in Brief item which would run along the following lines". There then followed a draft consisting of three sentences. The first two sentences summarised the gist of the allegations made in the article complained of. The third read:

"The Metropolitan Police's Directorate of Professional Standards has now concluded its investigation into [the Claimant] and found there is insufficient evidence to proceed with any criminal prosecution and [the Claimant] will not be subject to any disciplinary process".

  1. On 24 September 2007 solicitors for the Claimant responded that this added insult to injury, explaining:

"The investigation did not find 'there was insufficient evidence to proceed with any criminal prosecution'. There was no evidence, and, as a result, 'no formal disciplinary proceedings will be taken against' our client".

  1. Solicitors for the Claimant drafted their own form of Apology. That did not follow the words of the Report either, and was not acceptable to TNL.
  1. On 28 September 2007 Mr Brett wrote that there were a number of important witnesses who DCI Crump's team were unable to speak to, including the ISC Insider, and that TNL would have to approach those witnesses if the parties could not resolve the matter in accordance with proposals that he then set out. The letter stated that if the Claimant really did want what he called "a follow up report" to appear in the paper (in the same terms as he had previously offered), the Claimant only had to say so. Mr Brett added:

"But please be under no illusions that your client's counsel … cannot then in any way hold it against [TNL] for not publishing a follow up report when this matter goes to trial and we rely, not only on a plea of justification but also on a Reynolds qualified privilege defence".

  1. The wording put forward by TNL is different from that in the Report itself ("unable to find any evidence" – see para 4 above). The communication to TNL referred to by Mr Brett, which is the source for his wording ("insufficient evidence"), is a letter dated 4 September 2007 from DPS to TNL in which DCI Crump wrote:

"Having considered all of the available information, I am of the opinion now that there is insufficient evidence to proceed with any criminal prosecution. I am also of the view that insufficient evidence exists to mount any internal police disciplinary process".

  1. At this stage nothing turns on the difference between the parties on what was to be published, because in the event TNL did not publish any form of words along those lines. It may become relevant in relation to the form of any relief to be granted in due course.
  1. Each party was entitled to reject the form of words tendered by the other in correspondence. The parties to a dispute are not obliged to settle it, and may choose to litigate. But the risk in relation to the Reynolds public interest defence lay on TNL, and not on the Claimant. It is for a defendant to make good his defence. It may well be good practice to seek to agree a form of follow-up publication in a case such as this. But if there is no agreement, then the publisher must take his own course, and then defend it if he can at trial. He cannot offer the claimant a form of words which the claimant refuses to accept, and then rely on that refusal to relieve him of the obligation of acting responsibly and fairly, at least when the claimant's refusal is reasonable, as it was here.
  1. The upshot is that in relation to the website, TNL has not put forward anything to show that the continued website publication, without any updating or correction, met the requirements of responsible journalism as time went by. It is true that the Claim Form was issued on 31 May 2007, and technically does not complain of website publications in and after September 2007. But no point is taken on that technicality. Mr Rampton relied on the correspondence referred to above.
  1. Some of the factors that applied in relation to the print publication on 2 June 2006 apply to the website publications since then. But there have been significant developments since then. After September 2007 TNL knew that there had been an investigation which had been completed, and the outcome of it. The status of the information had therefore changed for the worse (Reynolds Factor 5). On 5 November 2008 TNL obtained copies of documents from IPCC, as set out above. No evidence adverse to the Claimant's case has come to light from any of the further investigations to which Mr Brett was referring in his letter of 14 September 2007. TNL can no longer state that the website publication includes a fair representation of the Claimant's case (Reynolds Factor 8). His case now includes the favourable outcome to the investigation.
  1. Nor can TNL rely on any of the public interest factors which they relied on in relation to the print publication (Reynolds Factor 2). And Mr Rampton has not advanced any other. As already mentioned, one of the principal points of public interest advanced for the print publication was that Michael Gillard's purpose was to call for an investigation, and, when he learnt that there was one, to ensure that it proceeded in a timely fashion. That purpose had been fulfilled to TNL's knowledge by 14 September 2007, and The Times has not continued to call for an investigation, or otherwise explain the continuing public interest in the website publications.
  1. A further factor is that the plea of justification is limited, as set out above. It may or may not succeed. Even if it succeeds, that would be consistent with the Claimant being entirely innocent. The most recent circumstance to have changed since the original print publication is that the Claimant and Mr Hunter have given the evidence I have summarised above, and that they were asked no questions at all. This will be relevant to any relief to be granted, and any further complaint the Claimant may make as to future publication on the website. But it also goes to the care that a responsible publisher should take to verify the information published (see Lady Hale's words in Jameel para 149). TNL do not challenge the Claimant's evidence, but neither do they act as a responsible publisher would act when faced with such evidence. TNL have been aware of the Claimant's case, and his evidence, prior to trial in the usual way, but have shown no response to it, such as would be appropriate to such unchallenged evidence.
  1. I reach the same conclusion in this case as the Court of Appeal reached in Loutchansky at para 79. 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. It is not in the public interest that there should continue to be recorded on the internet the questions as to the Claimant's honesty which were raised in 2006, and it is not fair to him. It is not in the public interest for the reasons given by Lord Nicholls in Reynolds at p201 cited in para 207 above.
  1. In the form in which this judgment was circulated in draft I had included in the second sentence of the previous paragraph the words "over the period since at least September 2007". In other words I found that the defence of qualified privilege failed from at least September 2007. And I added that I had not been asked to, and have not, made a finding as to the precise date from which it fails. Following circulation of the draft, TNL asked for clarification of the date from which the defence failed, and I permitted both parties to make further submissions, and to put before me letters exchanged between the parties which had been omitted from the trial bundle.
  1. Mr Price's primary submission was that it was clear from the draft judgment that I had rejected the defence of qualified privilege in relation to the website publications from their commencement, on the same day as the print publications. That is not correct. It was not my intention to find that that the website publications were unprotected from their commencement. Such a finding would be inconsistent with my finding that the print publication was protected by qualified privilege. Since the website publication commenced on the same date as the print publications, on any view for at least some period of time the factors that led me to uphold the defence of qualified privilege in relation to the print publication must apply with equal force to the website publication.
  1. The reason why I was unable to make a precise finding as to the date from which the defence of qualified privilege failed was related to the way the parties had advanced their cases. TNL had made no separate case in respect of the website publications. Their case on the print and website publications was the same. They advanced no alternative case in the event that I might find (as I have) that the print publication was protected by qualified privilege, but at least from some subsequent date the website publications were not. For his part the Claimant had referred to a number of different dates upon which, on his case, the facts relevant to qualified privilege changed materially. In the Particulars of Claim he had pleaded that TNL had continued to publish the article online despite the contents of two letters, one dated 18 July 2006 and the other dated 22 December 2006. In his amended Reply the Claimant alleged that the TNL had no continuing duty (within the meaning of Reynolds) to publish the words complained of without a suitable update. In the Reply he identifies (amongst other later dates which are irrelevant) the dates of 18 July 2006 and 5 September 2007. He does not, in the Reply plead the intermediate date of 22 December 2006, but I attach no significance to that omission. However, the letters dated on and between 16 July 2006 and 4 September 2007 were not in the trial bundles, and I was not taken to them at the hearing.
  1. The letter of 16 July 2006 is a letter before action. It sets out over two pages the allegations about which the Claimant complains, and the Claimant's denials. It is to be recalled that in the article at paras [8] and [9] TNL recorded the Claimant's denials of the allegations. In my judgment the letter of 16 July 2006 does not contain anything of substance which ought to have led TNL to update their website at that point. The Claimant also complains that the article did not report that the investigation was into allegations made by TNL. I do not accept that that is a complaint that affects the issue of qualified privilege, for the reasons set out in para 191 above.
  1. In the letter of 22 December 2006 the Claimant's solicitors wrote informing TNL, amongst other matters, that:

"… as of 20 December our client has been authorised to return to his original duties as the investigation has concluded that there is no evidence to support any allegations of wrong doing on the part of our client, whether as alleged by yourselves or otherwise and he has been totally exonerated".

  1. On 11 January 2007 TNL stated that they did not accept that the investigation had been concluded, although TNL accepted that the Claimant had recently returned to the Extradition Squad. TNL asked to see "the conclusions [of the investigation] and any recommendations made" and a copy of the official form supporting the Claimant's statement. They received no response. The fact that TNL accepted the Claimant had returned to work was an important development, because the article stated that he had been moved temporarily from his post, albeit not suspended (paras [2] and [9]). However, I do not consider that it is so significant that I could find that a failure to update the website in response to the letter of 22 December 2006 means that TNL fell below the standard of responsible journalism or was unfair to the Claimant.
  1. The Claim Form was served on 31 May 2007, and on 1 August 2007 the Claimant's solicitors explained their letter of 22 December 2006. They said that they had seen no point in replying to TNL's letter of 11 January. They stated that they anticipated receipt of the official form (known as form 163A) imminently. On 31 August 2007, following further correspondence from TNL, the Claimant's solicitors stated that they had been able to say what they did on 22 December, namely that the investigation had been concluded, and that there was no evidence to suggest any wrongdoing by the Claimant, because that is what he had been told by his superiors, and because that was supported by the fact that he was returned to his original duties without restrictions. On 5 September 2007 the Claimant was issued with form 163A, which stated that there would be no formal disciplinary proceedings. The Claimant does not know why the form was not issued before that date. The Claimant's solicitors sent a copy to TNL. The form is headed "Notification of Result of Investigation … referring to Investigation into allegations made by the Sunday Times". TNL responded on 14 September referring to the notification made to TNL on 4 September, as set out in para 242 above.
  1. In my judgment, as from receipt of the letter of 4 September, which would normally have been on 5 September 2007, responsible journalism required that TNL publish an update to their website. None was published, and I do not have to consider in what terms it should have been. Accordingly, the defence of qualified privilege fails in respect of subsequent publications.
  1. There was a further point advanced by Mr Price which I do not accept. He submitted that the website publications were not responsible journalism because it was clear at some point, and in particular after the disclosure of documents by IPCC, that the MPS investigation on which the article complained of had reported had in fact been caused by the Defendant. The conclusion does not follow. As I have found in relation to the print publication, the fact that the investigation may have been precipitated by the journalists is not a reason why they should not have the benefit of Reynolds public interest if they report on the investigation. It might well be otherwise if what they were reporting was their own allegations made to the police on 27 and 28 April 2006. But that was not what the article reports on.
  1. Although in this judgment, I have adopted the assumption that a person's right to protect his or her reputation, at least in a case such as the present, is amongst the rights guaranteed by Art 8, it would have made no difference if I had not adopted that assumption. The assumption favours the Claimant. In relation to the print publication, the assumption has not enabled him to succeed, and so he would be no better off without the assumption. In the case of the website publication, I would have reached the same conclusion even if I had not adopted the assumption.
  1. In summary, for the website publications sued on, I find that the defence of qualified privilege succeeds in respect of publications made up to 5 September 2007. It fails in respect of publications made as from 5 September 2007.

 

Published: 2009-10-23T11:22:41

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