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Newspaper archives can lose libel protection as stories change, rules High Court

OUT-LAW News, 19/10/2009

A newspaper which continued to publish a defamatory article on its website after its subject was cleared in an investigation lost its right to claim a special journalistic defence against libel, the High Court has said.

The ruling makes it clear that while responsible journalism is given some libel protection, that protection can evaporate if the crucial facts of the case change. Web archives of stories must change to reflect this, the ruling said.

Gary Flood was a policeman working in the extradition unit of London's Metropolitan Police Service. The Times published an article in 2006 which said that Flood was under investigation for corruption.

The article said that the Met was investigating claims that he had passed information for money to a security company run by a friend. Some of the company's clients were Russians living in the UK and the information was said to concern extradition warrants from Russia that had been issued against them.

An investigation by police found insufficient evidence to proceed with any criminal prosecution or any further internal investigation into Flood.

But though the High Court has found that the initial investigation was responsible enough to merit a defence against defamation of 'qualified privilege', it said that that could not apply to the online version of the article once The Times was told of the outcome of the investigation.

The article was published in print and online on 2nd June 2006. The Met wrote to The Times on 4 September 2007 with information about the outcome of its investigation into Flood.

"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," the investigating officer wrote.

The High Court has said that The Times could reasonably be expected to have received that letter on 5th September, and that the continued publication of an unaltered article after that date is not covered by the defence of 'qualified privilege'.

"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," said Mr Justice Tugendhat in his ruling. "It is not in the public interest that there should continue to be recorded on the internet the questions as to [Flood's] honesty which were raised in 2006, and it is not fair to him."

The online version of the article carried a warning in red capital letters which read: "Warning this article is subject to legal dispute. It should not be relied on or repeated". The Court said, though, that this did not exonerate it of responsibility for the defamation contained in the piece.

The Times accepted that the article was defamatory but claimed a defence of 'qualified privilege'. This is awarded when an article is on a matter of public interest; the defamatory statement makes a real contribution to the story; and the steps taken to gather the information were responsible and fair, according to a summary in the ruling of a case involving former Irish prime minister Albert Reynolds.

The High Court was satisfied that this was the case in relation to the original article. "There is no indication that the decision to publish the article in the form it was published on 2 June was made in a casual, cavalier, slipshod or careless manner," said the ruling. "The publication on 2 June 2006 was a proportionate interference with the Claimant's right to his reputation, given the legitimate aim in pursuit of which the publication was made."

Mr Justice Tugendhat said that the same was true of the online publication, but only until the newspaper was informed of the outcome of the investigation.

"After September 2007 [The Times] 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," said the ruling. "[The Times] 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."

See: The ruling