Courts will always play a very considerable role in regulating press, says Lady Justice
By Craig Sisterson

THE COURTS will always play a very considerable role in regulating the press and balancing privacy and media freedoms, regardless of any moves Governments make to create statutory regulators, Lady Justice Arden, Head of International Judicial Relations for England and Wales, has said in a 15 March public lecture at Cardiff Law School entitled “Media Intrusion and Human Rights: Striking the Balance”.

In her lecture, Lady Justice Arden noted the considerable public debate at the present time about the conduct of the press (in particular the conduct of investigative journalism) following the News of the World phone-hacking scandal, and that an inquiry led by Lord Justice Leveson has been established in response. The Leveson Inquiry was expected, in part, to lead to recommendations for a new, more effective policy and regulatory regime designed to encourage the highest ethical and professional standards, without stifling the independence or plurality of the media. The voluntary, industry-led body, the Press Complaints Commission, could be replaced by a statutory or regulatory body. However, “regulation of the press is extremely difficult as it may result in a ‘chilling’ of the press” and any system of statutory regulation “would have to be carefully crafted”, said Lady Justice Arden at [83].

Human rights jurisprudence, with British national courts looking to the jurisprudence of the European Court of Human Rights in Strasbourg (which lays down jurisprudence for European nations totalling about 800 million people) can, has, and will continue to make a vital contribution to solving such privacy versus media freedom problems, said Lady Justice Arden. “The situations where problems are likely to arise are bound to be fact-sensitive,” she said at [84]. “The law will also have to develop in line with developments in technology and changes in social attitudes. It is difficult for a system of regulation to be sufficiently flexible. It is, therefore, the courts who in the future are likely, by deciding privacy cases on a case by case basis, to be doing much of the work of providing an up-to-date definition of proper journalistic standards.”

Lady Justice Arden’s point was underlined by a decision of the Supreme Court of the United Kingdom delivered the week following her lecture. Flood v Times Newspapers Ltd [2012] UKSC 11 (21 March 2012) was based on a claim for libel relating to the publication of an article in June 2006 that named Detective Sergeant Flood as a detective accused of taking money to disclose confidential extradition information to a security firm whose clients included high-profile Russians who were the subject of extradition requests. After being contacted by journalists, the Metropolitan Police Service (MPS) took steps to investigate the allegations, with Flood being moved from the Extradition Unit until January 2007. In September 2007, the MPS told the parties that the investigation had finished, and made no recommendation for criminal or disciplinary proceedings. Flood sued for libel, complaining the article suggested there were strong grounds to suspect he had abused his position as a police officer.

The issue for the Supreme Court was whether Times Newspapers was protected from liability in defamation under the doctrine known as Reynolds privilege, which the Court noted at [2] protects publication of defamatory matter to the world at large where: (i) it was in the public interest that the information should be published; and (ii) the publisher had acted responsibly in publishing the information, a test usually referred to as “responsible journalism” although the privilege isn’t limited to publications by the media (see Reynolds v Times Newspapers Ltd and others [2001] 2 AC 127). The High Court had found the publication of the article was protected by Reynolds privilege, but that finding was overturned by the Court of Appeal, largely on the grounds that the journalists responsible for the article had failed to act responsibly in that they had failed adequately to verify the allegations of fact it contained.

Lord Phillips noted at [22]-[25] that the appeal raised a number of issues in relation to Reynolds privilege:

• The “meaning” issue: how should the Court approach the meaning of a publication?
• The “public interest” issue: whether, and in what circumstances, is it in the public interest to refer to the fact that accusations have been made, and particular that accusations have been made to the police, that a named person has committed a criminal offence?
• The “verification” issue: what, if any, verification is required on the part of the responsible journalist, and in particular, is the journalist required to take steps to check whether the accusations that have been made are well-founded, or is it his or her duty to do no more than verify that the accusations reported were in fact made?

Reynolds privilege requires a balance to be struck between the desirability that the public should receive information that is in the public interest and the potential harm that may be caused if an individual is defamed, noted Lord Phillips at [48].

“When deciding whether to publish, and when attempting to verify the content of the publication, the responsible journalist should have regard to the full range of meanings that a reasonable reader might attribute to the publication,” held Lord Phillips at [51]. “It is for the judge to rule on a claim to Reynolds privilege, just as it is for the judge to rule on the range of meanings that a publication is capable of bearing. The judge’s conclusions as to the latter will inform his judgment as to whether the defendant acted responsibly in publishing the article.”

The Court held that the story, if true, was of high public interest, not just in terms of police corruption, but the nature of that corruption, so the case turned on the issue of verification. “Reynolds privilege absolves the publisher from the need to justify his defamatory publication, but the privilege will normally only be earned where the publisher has taken reasonable steps to satisfy himself that the allegation is true before he publishes it,” said Lord Phillips at [78]. On the facts, Lord Phillips was of the view that the journalists had been reasonably satisfied, on the basis of supporting facts and of the action of the police that there was a serious possibility Flood had been guilty of corruption. “Contrary to the decision of the Court of Appeal, I consider that the requirements of responsible journalism were satisfied,” said Lord Phillips at [99]. The Supreme Court unanimously allowed the appeal.

NZLawyer \\ issue 181 \\ 5 April 2012