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James Harding, Editor of The Times, said: “This is a landmark decision in favour of responsible journalism in the public interest. I hope that all those considering the future of press freedom will reflect on the court’s findings.” The Reynold’s Defence, so called because it was first recognized as a separate type of qualified privilege in a case brought by Albert Reynolds against the publishers of the Times in 1999, protects publishers where material they published in the public interest subsequently proves to be untrue. They will not be liable for defamation if they can show that they acted responsibly and took steps to verify the information published. The defence balances the public’s right to know against the potential harm that may be caused if what is published is defamatory of an individual who suffers as a consequence. The more serious the charge, the more important it is for the public to know, yet the more damaging, if ultimately found to be untrue.

In Flood v Times Newspapers Ltd, The Times alleged that Metropolitan Police Sergeant Flood had sold information to Russian oligarchs about extradition requests. Sergeant Flood was innocent; the issue for Mr Justice Tugendhat at first instance ([2009] EWHC 2375 (QB)) and then the Court of Appeal ([2010] EWCA Civ 804), was whether the journalists writing the story had acted sufficiently responsibly in carrying out their journalistic duties, to benefit from immunity in defamation.

Justice Tugendhat had ruled yes, the Court of Appeal had ruled no. The Court of Appeal ruled that the journalists had not taken proper steps to verify the story.There was an outcry – most commentators at the time wrote that as a result of the Court of Appeal ruling, journalists investigating a story were held up to the standard of the police and had effectively to prove guilt before reporting allegations.The Supreme Court has restored the validity of the defence. The hard and fast principles relating to the defence of justification do not apply when considering whether a journalist has acted responsibly. That would impose too strict a fetter on freedom of expression.

Lord Dyson said: “The danger of trial by press without proper safeguards will often weigh heavily against the publication of the details of an accusation against an ordinary individual. But where the accusation is of a crime or professional misconduct by a person in his performance of a public function, I do not think that the danger of a trial by press without proper safeguards weighs heavily, still less conclusively, against publication.”

Where a journalist alleges that there are grounds for suspecting that a person has been found guilty of
misconduct, the responsible journalist should satisfy himself that such grounds exist, but this does not necessarily require that he should know what those grounds are. Their existence can be based on information from reliable sources, or inferred from the fact of a police investigation in circumstances where such inference is reasonable. In the present case, the Lords found that the supporting facts were true and verified as such.

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