Online Defamation And Website Corrections – Flood v Times Newspapers Limited

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If online news publishers wish to enjoy the benefit of claiming the Reynolds qualified privilege (in the UK) or the responsible journalism defence (in Canada), the Flood case indicates there is a duty to update news items on websites to remove any defamatory allegations, once a publisher becomes aware that an allegation is found to be false.

In the Flood case the publisher tried to invoke the Reynolds privilege which led to the creation of a new defamation defence of responsible communication in the public interest by the Canadian Supreme Court in Grant v Torstar Corp. 2009 SCC 61. Whilst not identical, these defences to defamation are similar in nature.

In Flood v Times Newspapers Limited [2010] EWCA Civ 804 CA, the defendant newspaper and website publication concerned a police investigation into alleged corruption by police in relation to the extradition of suspected criminals.  The defamatory allegation suggested that the officer had been taking bribes.

Subsequently, there was an an internal enquiry exonerating the police officer of any wrongdoing, however the defendant newspaper left the original article on the website unaltered. The newspaper argued that it’s report about the investigation into the police officer was protected by the  “Reynolds/Jameel” defence (Reynolds v Times Newspapers Ltd [2001] 2 AC 127 and Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359, which protects responsible publication on matters of public interest (qualified privilege).

The question before the Court in Flood was whether qualified privilege attached to both the newspaper and website publications, and significantly whether the privilege would continue to offer protection to the website publication after the defendant had learnt of the results of the police enquiry exonerating the police officer.

The Court of Appeal who had initially heard the case found that the report concerning the investigation into the allegations was justified in the public interest where the requirements of the Reynolds privilege had been satisfied and the responsible journalism defence applied.

However the Appeals Court ruled that whilst Times Newspapers could rely on the defence of qualified privilege in relation to the original publication, the continued presence of the article on the website could not attract privilege.

As to publication on the website, once the defendant had been told of the result of the police investigation and the conclusions reached, any responsible journalist would have appreciated that those allegations required speedy withdrawal or modification. Despite that, nothing had been done. A defendant could not offer a claimant a form of words which the claimant refused to accept and then rely on that refusal to relieve him of the obligation of acting reasonably and fairly, whether or not the claimant’s refusal was reasonable

Clearly once an online publisher becomes aware that a defamatory allegation is false it has an obligation to modify the online version of a story to make it clear the allegations have no factual basis.

This conclusion is consistent with the decisions in Loutchansky [2002] QB 783 and Times Newspapers Ltd v UK (Nos 1 & 2)

This judgement raises issues about the application of the multiple publication rule and ongoing liability for defamation.  It begs the question of whether internet archivers, libraries and search engines may be at risk for making available online archives or search engines containing defamatory content.

The multiple publication rule holds that material is published each and every time it is read, heard, viewed or accessed and in each place where this takes place. The potential for ongoing liability in defamation in relation to material repeatedly accessed over a long period of time is massive, giving rise to a separate cause of action with a 12 month limitation period attached for bringing legal action relating to each act of publication of defamatory material.  Publishers are clearly exposed to liability long after the initial publication date in line with ancient english case law in the Duke of Brunswick case.

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4 Responses to Online Defamation And Website Corrections – Flood v Times Newspapers Limited

  1. says:

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