A Question of Balance: Freedom of Expression vs. The Reputation of an Individual

A Question of Balance: Freedom of Expression vs. The Reputation of an Individual

Amanda Carpenter is a JD Candidate at Osgoode Hall Law School.

In a recent English case involving the Times Newspapers Ltd (“Times”) and Detective Sergeant Gary Flood (“DS Flood”), the Court of Appeal interpreted the “Reynolds defence” to defamation and also decided that a newspaper publishing allegations on its website after it was communicated to them that no evidence could be found supporting the allegations left it liable for defamation.   

The allegations made against DS Flood, who worked in the extradition unit of the police force, consisted of him being “accused of taking bribes from Russian exiles” to provide them with information concerning moves by Moscow to extradite Russians wanted for fraud and tax evasion charges. Following relevant statutes along with recent judicial statements, DS Flood’s lawyer Mr. Price did not argue that it was defamatory for The Times to publish in its newspaper the story of DS Flood being the police officer under investigation for taking bribes. However, he did argue that it was defamatory for the newspaper to publish the allegations made by the police informant concerning DS Flood.

Mr. Price based his arguments regarding the allegations being defamatory on the basis of rebutting the defence claimed by The Times: the Reynolds Defence. The Reynolds Defence requires that the article as a whole should be on a matter of public interest, that the inclusion of the defamatory statement should be part of the story and should make a real contribution to it, and that the steps taken to gather and publish the information should have been responsible and fair.

Mr. Price accepted that the article published in The Times newspaper as a whole was on a matter of public interest. However, he argued that the lower court judge ought to have asked himself whether the inclusion in the article of the allegations was in the public interest. Most importantly, Mr. Price argued that the journalists who sold the story to The Times made no checks on the truth of the allegations that claimed that DS Flood had accepted bribes to provide Russian exiles with information concerning moves by Moscow to extradite wanted Russians. Thus, the allegations were no more than “unsubstantiated unchecked accusations, from an unknown source, coupled with speculation”. Listening to this argument the Court of Appeal decided that the article printed in the newspaper, insofar as it included these unsubstantiated allegations, was not protected under the Reynolds Defence and that The Times was liable for defamation.

Regarding the newspaper publishing the allegations on its website after it was communicated to it that no evidence could be found to support these allegations, the Court of Appeal agreed with the lower court decision that doing so left The Times liable for defamation, saying that their decision was “plainly right”. The lower court stated:

"The failure to remove the article from the website, or to attach ... 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 [DS Flood's] honesty which were raised in 2006, and it is not fair to him. It is not in the public interest ..."

Many might agree with this judgement, which not only found that publishing unsubstantiated allegations made the publisher liable for defamation, but which also found that leaving these statements online while the publisher knew that they were unsubstantiated constituted defamation. Some may argue however that this case renders the Reynolds Defence to be “so uncertain as to be of little practical use” since even careful judges can come to different decisions as to what constitutes responsible journalism. Others wonder what this judgement means for bloggers, since it may require that they update their stories to take account of exculpatory evidence. Thus, some may question whether the Court of Appeal has found a fair balance between freedom of expression on matters of public concern and the reputations of individuals.