Journal of Media Law

ISSN: 1757-7632 (Print) 1757-7640 (Online) Journal homepage: http://www.tandfonline.com/loi/rjml20

The Nature of Responsible Journalism

Paul Mitchell

To cite this article: Paul Mitchell (2011) The Nature of Responsible Journalism, Journal of Media
Law, 3:1, 19-28

To link to this article: http://dx.doi.org/10.5235/175776311796471297

Published online: 07 May 2015.

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 (2011) 3(1) Journal of Media Law 19–28

The Nature of Responsible Journalism

Paul Mitchell*
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A. INTRODUCTION

Compliance with the standards of responsible journalism is a prerequisite for any

defendant (whether a journalist or not) who is relying on the defence of qualified privilege
established in Reynolds v Times Newspapers Ltd.1 Both in Reynolds itself, and in the later
case of Jameel v Wall Street Journal Europe Sprl,2 guidance was given as to how this test of
responsible journalism should be applied. Thus, Lord Nicholls in Reynolds set out 10
illustrative factors for the court to take into account. These included matters such as the
seriousness of the allegation, the steps taken to verify it, and whether the claimant had
been given the opportunity to respond to it.3 In Jameel the House of Lords confirmed
that those factors were illustrative only, and that deference should be given to editorial
judgements about whether the standards had been met.4 The overall theme seemed to be
that a broad, liberal approach would be adopted, in which the courts would take their
lead from the views of responsible journalists. As some judges and commentators
observed, the responsible journalism test thus seemed to have quite a lot in common with
the test for breach of duty of care in negligence.5 There, similarly, a wide range of factors
had to be weighed against each other, and, in professional contexts, the courts deferred
to responsible professional opinion.6
In one important respect, however, the responsible journalism test was not quite like
the test for breach of duty of care in negligence. A defendant who demonstrated that he

* Professor of Laws, University College London, UK.

1 [2001] 2 AC 127.
2 [2007] 1 AC 359.
3 [2001] 2 AC 127, 205.
4 [2007] 1 AC 359, [33] (Lord Bingham), [47], [51], [56]–[57] (Lord Hoffmann), [108] (Lord Hope).
5 Reynolds v Times Newspapers Ltd [2001] 2 AC 127, 224 (Lord Cooke); Bonnick v Morris [2002] UKPC 31,
[2003] 1 AC 300, [25]; Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359, [55] (Lord Hoffmann),
[149] (Baroness Hale); Eric Descheemaeker, ‘Protecting Reputation: Defamation and Negligence’ (2009) 29
Oxford Journal of Legal Studies 603, 636–9.
6 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.

19
 20 Journal of Media Law

had taken reasonable care in the circumstances could not be liable in negligence. A
defendant satisfying the requirements of responsible journalism, by contrast, was only
part of the way there. In addition, he had to satisfy two further requirements: first, that
the subject matter of his communication was a matter of public interest; and second, that
the defamatory allegation made a real contribution to the story.7 The balance of authority
also supports a further requirement, namely that the defendant must not have published
maliciously.8
The Court of Appeal’s recent decision in Flood v Times Newspapers Ltd,9 on which this
article focuses, is almost certainly the most important decision on Reynolds privilege since
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Jameel v Wall Street Journal Europe Sprl. In the course of analysing whether a report of
allegations of corruption against a serving police officer was protected, the Court of
Appeal discussed the nature of the responsible journalism test, introduced a new factor
to the assessment of responsible journalism (which proved decisive on the facts of the
case), and subtly re-interpreted the Reynolds criteria, so as to introduce a public interest
element into the standards of responsible journalism. In short, the Court of Appeal’s
decision sends Reynolds privilege in a new direction.

B. FLOOD v TIMES NEWSPAPERS Ltd

The claimant, Gary Flood, was a detective sergeant with the Metropolitan Police
extradition unit. The defendant newspaper published a story—in both paper and
electronic editions—reporting that Flood was being investigated for corruption. The story
quoted from a statement given by the Metropolitan Police that an investigation was
ongoing, and also set out some of the details of the alleged payments illicitly received by
Flood. The claimant was later cleared of any wrongdoing by an internal investigation. He
then launched proceedings in respect of both the paper and the electronic publications.

7 Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359.

8 In favour: Reynolds v Times Newspapers Ltd [2001] 2 AC 127—see Lord Nicholls at 201, Lord Steyn at 215–
16, Lord Cooke at 219–20, Lord Hope at 229 and 235–6, and Lord Hobhouse at 239; GKR Karate (UK) Ltd
v Yorkshire Post Newspapers Ltd [2000] 1 WLR 2571. Against: Bonnick v Morris [2002] UKPC 31, [2003] 1
AC 300, [14]; Loutchansky v Times Newspapers (Nos 2–5) [2002] QB 783; Jameel v Wall Street Journal Europe
Sprl [2007] 1 AC 359, [46] (Lord Hoffmann, with whom Baroness Hale agreed). A majority of the House
of Lords in Jameel held that Reynolds privilege was not a ‘different jurisprudential creature’ (see [46]), but
simply an extension of the existing categories of qualified privilege; this classification would suggest that
malice continues to be relevant to Reynolds privilege, in the same way that it is relevant to the existing
categories of qualified privilege.
9 [2010] EWCA Civ 804, [2011] 1 WLR 153. Noted in Brian Dowrick, ‘Investigating Corruption—Application
of the Reynolds Defence to Print and On-line Reports: Flood v Times Newspapers Ltd’ [2010] Communi-
cations Law 116; Oliver Smith, ‘Flood v Times Newspapers Ltd’ (2010) 21(8) Entertainment Law Review 311.
See also Jonathan Coad, ‘Reynolds, Flood and the King’s New Clothes’ (2011) 22 (1) Entertainment Law
Review 1.
 The Nature of Responsible Journalism 21

At first instance Tugendhat J upheld the defence of Reynolds privilege in respect of the
paper publications, but rejected it for the online publications.10
The Court of Appeal allowed the claimant’s appeal in respect of the paper editions,
but upheld Tugendhat J’s decision in relation to the electronic publication. The crucial
distinction between the two types of publication was that the electronic version continued
to be published (through the defendant’s electronic archive), essentially unaltered, after
the claimant had been exonerated; indeed, it was still readily accessible at the time of the
trial.11 As the Court of Appeal had previously held in Loutchansky v Times Newspapers Ltd
(Nos 2–5),12 whether the standards of responsible journalism were met fell to be decided
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at the time of each separate publication. Where circumstances had changed between the
initial (paper) publication and subsequent (electronic) re-publication, the onus was on
the publisher to amend, or annotate, the material to reflect the significance of those new
circumstances. To fail to do so was to fail to act responsibly. On the prevailing law,
therefore, the Court of Appeal’s decision in Flood in relation to the electronic publication
was orthodox.13
The same could not be said of the analysis of the paper edition. Lord Neuberger MR
(with whom Moore-Bick LJ and Moses LJ agreed) began his analysis by explaining that
the understanding of how human rights applied to defamation had changed since the
decision in Reynolds v Times Newspapers Ltd. At the time Reynolds was decided, it was
thought that the only relevant provision of the Convention was Article 10. Article 10 set
out the right to freedom of expression subject to exceptions for, amongst other things, the
protection of reputation. It followed that, as Lord Nicholls had said in Reynolds, in cases
of doubt, the right (freedom of expression) should prevail over the exception
(reputation).14 However, subsequent case law in the European Court of Human Rights
recognised that reputation formed part of private life; private life was protected by Article
8. Defamation cases, therefore, concerned not merely a right and the exception to it, but
two rights.15 Neither should be presumptively prioritised, and it followed, therefore, that
Lord Nicholls’ statement that ‘any lingering doubt should be resolved in favour of
freedom of expression’ was no longer good law.16
10 Flood v Times Newspapers Ltd [2009] EWHC 2375 (QB), [2010] EMLR 8. Noted in Howard Johnson,
‘Investigating Corruption—The Article and the Archive, and the Reynolds Defence in Action: Flood v Times
Newspapers Ltd ’ [2009] Communications Law 157.
11 [2009] EWHC 2375 (QB), [220]–[223].
12 [2002] QB 783.
13 A different result will be reached if s 6 of the Draft Defamation Bill, introducing a single publication rule,
is enacted. Ministry of Justice, Draft Defamation Bill Consultation, Consultation Paper CP3/11 (Cm 8020),
64, Annex A p 4.
14 [2001] 2 AC 127, 205. See, similarly, Lord Steyn’s statement in the same case (at 208): ‘freedom of expression
is the rule and regulation of speech is the exception requiring justification.’
15 Cumpana and Mazare v Romania (2004) 41 EHRR 14; Pfeifer v Austria (2007) 48 EHRR 8.
16 [2010] EWCA Civ 804, [2011] 1 WLR 153, [21]. Tugendhat J had reached the same conclusion at first
instance: [2009] EWHC 2375 (QB), [136]–[146].
 22 Journal of Media Law

Lord Neuberger MR then turned his attention to the specific principles of English
law applicable to the case. His starting point was section 15 of the Defamation Act 1996,
which gave qualified privilege to fair and accurate reports of statements issued by the
police. The part of the story reporting the statement was, therefore, admitted to be
protected. The statement had not actually identified Gary Flood as the officer under
investigation, but the claimant accepted that he could not complain about being named.
The real controversy in the case centred on the report of the detailed allegations being
made against Flood.
In relation to these allegations, counsel for the claimant submitted that, as a matter
of principle derived from earlier case law,17 Reynolds privilege could not apply, because
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what was being reported were ex parte allegations made to the police. Lord Neuberger
MR rejected this submission: there was no good reason to exclude the report of allegations
made to the police from Reynolds privilege. It was ‘dangerous’,18 he added, to rely on
nineteenth-century case law when the scope of Convention rights was being considered.
Lord Neuberger MR then dealt with a submission to the effect that the trial judge
had already decided the issue of Reynolds privilege, and the Court of Appeal should not
overturn that finding. The application of Reynolds privilege, Lord Neuberger replied, was
a question of law, as to which there was one right answer.19 The Court of Appeal’s duty
was to give that answer, bearing in mind any advantage that the trial judge might have
had.20
The next stage of the analysis was to consider how the Reynolds criteria applied.
Clearly the general subject of police corruption was a matter of public interest. However,
when it came to applying the responsible journalism test, that, too, required an assessment
of the public interest. Thus, Lord Neuberger stated that ‘[b]oth limbs of Reynolds privilege
are based on the public interest’.21 ‘It would be tipping the scales too far in favour of the
media,’ he continued,

to hold that not only the name of the claimant, but the details of the allegations against him,
can normally be published as part of a story free of any right in the claimant to sue for
defamation just because the general subject matter of the story is in the public interest. The fair
balancing of Article 8 and Article 10 would normally require that such allegations should only
be freely publishable if to do so is in the public interest and the journalist has taken reasonable
steps to check their accuracy.22

Lord Neuberger MR also made it clear that Tugendhat J, at first instance, had given too
generous a scope to editorial judgement:23
17 Purcell v Sowler (1877) 2 CPD 215; De Buse v McCarthy [1942] 1 KB 156.
18 [2010] EWCA Civ 804, [2011] 1 WLR 153, [40].
19 Ibid, [46].
20 Ibid, [49].
21 Ibid, [59].
22 Ibid, [63].
23 Ibid, [65].
 The Nature of Responsible Journalism 23

[W]hen the media publish a police statement that a person is being investigated for a crime and
identify the person concerned, the question whether reporting, in addition, the allegations
upon which the investigation is based should be accorded Reynolds privilege is properly to be
judged by seeing whether the established requirements of that privilege are met in relation to
the reported allegations. Otherwise, one would be effectively extending the privilege of section
15 of the 1996 Act accorded to the report of the police statement, by refracting it through the
prism of editorial control, so that the report of the allegations which gave rise to the
investigation are also privileged, albeit on a slightly different basis.

He concluded that, applying Lord Nicholls’ factors from Reynolds, the standards of
responsible journalism had not been met. It was particularly significant that no attempt
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had been made to verify the allegations.

The concurring judgments of Moore-Bick LJ and Moses LJ helpfully amplify certain
aspects of Lord Neuberger MR’s analysis. Thus, Moore-Bick LJ observed that ‘responsible
journalism requires a recognition of the importance of ensuring that persons against
whom serious allegations of crime or professional misconduct are made are not forced
to respond to them before an investigation has been properly carried out’.24 Moses LJ
explained that whilst it was clearly important for the public to know that allegations of
corruption made against police officers were efficiently investigated, there was no
legitimate public interest in the details of unproven allegations. Furthermore, publication
of those allegations put the onus on the claimant to respond through the press, when—
with the investigation pending—it was unfair to expect him to do so.25

C. COMMENTARY

1. Fact or Law?
The Court of Appeal’s decision in Flood v Times Newspapers Ltd casts light on both the
nature and the application of Reynolds privilege. So far as the nature of the privilege is
concerned, one of the most eye-catching aspects of the decision is the emphatic assertion
that Reynolds privilege is a question of law, to which there is one right answer. In making
this assertion, the Court of Appeal was deliberately declining to follow the approach
adopted in Galloway v Telegraph Group Ltd, where it was said that

[t]he right to publish must … be balanced against the rights of the individual. That balance is
a matter for the judge. It is not a matter for an appellate court. This court will not interfere with
the judge’s conclusion after weighing all the circumstances in the balance unless he has erred
in principle or reached a conclusion which is plainly wrong.26

24 Ibid, [104].
25 Ibid, [112]–[116].
26 Galloway v Telegraph Group Ltd [2006] EWCA Civ 17, [2006] EMLR 11, [68].
 24 Journal of Media Law

By requiring either an error of principle or a conclusion that was ‘plainly wrong’, the
Court of Appeal in Galloway v Telegraph Group Ltd was imposing restrictions that were
more stringent than those required by general principle. The leading House of Lords case
on this issue is Benmax v Austin Motor Co Ltd,27 where it was said that a distinction had
to be drawn between primary facts and inferences from facts. Findings of specific fact
were appealable, although it was important to bear in mind the trial judge’s advantage in
seeing live witnesses. Appeals concerning inferences from specific facts, by contrast,
required the appellate court to form its own independent view on the point. Thus, for
instance, a judge’s conclusion in a negligence action that a defendant had fallen below
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the standard of reasonable care in no way constrained an appellate court: ‘An appellate
court must be free to consider whether the judge … applied the standard of the reasonable
man, as our law prescribes, or the standard of a man of exceptional care and prescience.’28
The similarity between Reynolds privilege and breach of duty of care might suggest
that the approach to appealing a finding of breach of duty should apply equally to a
finding regarding Reynolds privilege. Unfortunately, matters are not that simple. In
qualified privilege, the finding that the occasion is privileged is a matter of law (for the
judge); the finding of malice is a matter of fact (for the jury).29 As a matter of strict legal
analysis, therefore, the Court of Appeal in Flood v Times Newspapers Ltd was correct to say
that the application of Reynolds privilege was a question of law; and the Court of Appeal
in Galloway v Telegraph Group Ltd was incorrect to say that it was a question of fact.
On closer analysis, however, the reasons for regarding the question of whether the
occasion is privileged as a question of law are less than convincing, particularly in modern
conditions. The defence of qualified privilege grew out of the more general idea that
malice was an element of liability in defamation.30 Until the early nineteenth century,
malice (in the sense of bad motive) was presumed against a defendant who was proved
to have spoken or written defamatory words. The onus was on the defendant to rebut
that presumption. In some situations, however, malice was not presumed: the occasion of
speaking the words was, itself, said to demonstrate the absence of malice. In such
situations, the burden of proof of malice was on the claimant. These situations—the
classic example being servants’ references—would later form the nucleus of qualified
privilege. Malice, whether presumed or not, was a question of fact, for the jury.
Qualified privilege, in the form we know it today, can be traced back to Toogood v
Spyring,31 and by the mid-nineteenth century the traditional requirements of reciprocal

27 [1955] AC 370.
28 Ibid, 377 (Lord Somervell). See also Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743, particularly
761–2 (Lord Denning).
29 Hebditch v MacIlwaine [1894] 2 QB 54, 58 (Lord Esher MR).
30 See further Paul Mitchell, The Making of the Modern Law of Defamation (Hart Publishing, 2005) ch 7; Paul
Mitchell, ‘Duties, Interests and Motives: Privileged Occasions in Defamation’ (1998) 18 Oxford Journal of
Legal Studies 381.
31 (1834) 1 CM & R 181.
 The Nature of Responsible Journalism 25

duties or interests between the defendant and his audience had been established. The
defence was not quite yet in its modern form, because it was still unsettled whether the
defendant’s genuine belief that he had a duty or was protecting an interest, even where
that belief was mistaken, could ground the defence. However, around the start of the
1850s it seems to have become accepted that the existence of the duty or interest was a
question of law (for the judge to decide), whilst the issue of malice remained a question
of fact for the jury.32 This division of responsibility seems to have been part of a more
general movement towards judicial control of juries—a very similar development
occurred at the same time in relation to duties of care in negligence33—and would soon
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resurface in fair comment (where judges did not want to leave juries to decide what was
a matter of public interest).34
Judges were never especially well placed to determine the existence of privileged
occasions: the duties or interests they were supposed to be identifying were not legal
duties, or legal interests, but, rather, moral duties and interests, that would be acknow-
ledged as such by an average citizen.35 Today, given the decline in the number of jury
trials for defamation, and the current proposal to remove a party’s right to opt for trial
by jury,36 there seems to be little reason to retain a distinction between law and fact that
was drawn, unconvincingly, for procedural reasons that no longer apply. At the very least,
it would be appropriate to recognise that the Reynolds responsible journalism test is an
inference from primary fact, like a finding of breach of duty of care in negligence.

2. One Right Answer

Whether the application of Reynolds privilege is seen as a question of fact or a question

of law, the Court of Appeal’s assertion that there is ‘one right answer’37 requires careful
elucidation. In particular, it has to be reconciled with the fact that the responsible
journalism test requires that incommensurable factors be balanced against each other,
and with the statement that ‘a considerable degree of deference should be paid to editorial
judgment when deciding whether the inclusion of the defamatory material was
justified’.38 Clearly there is the potential for different individuals, acting sincerely and
carefully, legitimately to come to different conclusions as to whether the standards of
responsible journalism have been met. Perhaps, then, the Court of Appeal must be
understood as saying that the conclusion that the standards of responsible journalism
have been met is either within what would be legitimate for an editor, or not. However,

32 Somerville v Hawkins (1850) 10 CB 583.

33 David Ibbetson, An Historical Introduction to the Law of Obligations (Oxford University Press, 1999) 173–4.
34 Henwood v Harrison (1872) LR 7 CP 606. See generally Mitchell 2005 (n 30) ch 8.
35 Stuart v Bell [1892] 2 QB 341; Watt v Longsdon [1930] 1 KB 130; Ley v Hamilton (1934) 151 LT 360.
36 Ministry of Justice (n 13) 64, Annex A p 6, cl 8.
37 [2010] EWCA Civ 804, [46] (Lord Neuberger MR), [107] (Moore-Bick LJ).
38 Ibid, [100].
 26 Journal of Media Law

it is difficult to reconcile this emphasis on deference with the tenor of the speeches as a
whole. There is very little about what the journalists themselves thought, how they
analysed the situation, etc.39 Again, a comparison with cases on breach of duty of care is
instructive.
In professional negligence cases the courts apply the Bolam test,40 according to which
a professional defendant is not in breach of duty if he ‘acted in accordance with a practice
accepted as proper by a responsible body of … men skilled in that particular art’.41 The
courts only refuse to defer to such an opinion if it lacks a logical basis, or fails to include
any analysis of risks and benefits.42 The approach to the Reynolds test in Flood v Times
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Newspapers Ltd is very different. Rather than considering whether the editorial decision
to publish the story was flawed in some way, the court undertook its own painstaking
analysis. There is no discussion of how The Times’ editor, or any other editor or journalist,
would have perceived the situation. In fact, the Court of Appeal’s approach bears a far
closer resemblance to the typical analysis of alleged breach of duty by lawyers. In such
cases, the courts have no need to fall back on the Bolam test; they (understandably) feel
that they have the expertise to analyse the situation themselves, without deferring to
professional opinion.43 In short, the decision in Flood v Times Newspapers Ltd looks more
like the Court of Appeal setting the standard, not deferring to journalists’ own views.

3. A New Factor

The Court of Appeal’s application of the Reynolds test placed significant emphasis on an
aspect of responsible journalism that had not previously been recognised. As Moore-Bick
LJ put it, ‘responsible journalism requires a recognition of the importance of ensuring that
persons against whom serious allegations of crime or professional misconduct are made
are not forced to respond to them before an investigation has been properly carried out’.44
In other words, responsible journalism required some consideration of whether it was
appropriate to publish, or fair to the claimant to do so. The Court of Appeal justified its
use of this new criterion by saying that the concept of responsible journalism was, itself,
governed by the broader concept of the public interest. Here the public interest in
question seemed not to be the interest in being informed (which is the aspect of public
interest usually engaged by defamation cases), but rather the public interest in investi-

39 cf Tugendhat J’s approach at first instance: [2009] EWHC 2375 (QB), at eg [74]–[75].
40 Named after the leading case articulating the relevant principles: Bolam v Friern Hospital Management
Committee [1957] 1 WLR 582.
41 Ibid, 587.
42 Bolitho v City and Hackney Health Authority [1998] AC 232. See further Harvey Teff, ‘The Standard of Care
in Medical Negligence—Moving on from Bolam?’ (1998) 18 Oxford Journal of Legal Studies 473.
43 eg Edward Wong Finance Co Ltd v Johnson Stokes & Master (a firm) [1984] 1 AC 296.
44 [2010] EWCA Civ 804, [104].
 The Nature of Responsible Journalism 27

gations being conducted fairly. In essence, this was an aspect of responsible journalism
that was based on the same kind of ideas as contempt of court: it was in the public interest
for the press not to jeopardise a fair trial.
Whilst the Court of Appeal’s approach on this point is both interesting and
innovative, two points can be made about it. First, it is based on extending the ideas
underlying contempt of court to situations where no offence of contempt has been
committed. Tugendhat J had rejected a similar argument at first instance, saying that ‘[a]
general rule that it is against the public interest to engage in investigative journalism on
a matter which is, or (in the media’s view) should be, the subject of a police investigation
must be far too wide’.45 Secondly, the Court of Appeal’s emphasis on proceedings not
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being undermined is rather difficult to reconcile with its statements that Reynolds
privilege would have existed if the defendant had taken further steps to verify the
allegations.46 Surely the publication of better checked allegations would have had the
same potential to inhibit a fair investigation of the claimant—such allegations would be
just as likely to provoke the claimant into a trial by media, which would be against the
public interest in fair proceedings. Furthermore, the journalists’ efforts to verify the
allegations could easily impede the official investigation—indeed, there was some
evidence in Flood that even the preliminary inquiries made by journalists had prompted
the shredding of incriminating documents.47 Of course, if the journalists’ efforts to verify
allowed them to demonstrate that the allegations were true, it would be in the public
interest for the truth to be known. But the whole point of the Reynolds defence is that it
protects the publication of allegations which the defendant is unable to prove to be true;
as Lord Hoffmann put it in Jameel, the truth or falsity of the allegations is merely a ‘neutral
circumstance’ in assessing Reynolds privilege.48 It seems that the precise role in Reynolds
privilege of the potential for a publication to undermine ongoing legal or disciplinary
proceedings will need refinement in later cases.

D. CONCLUSION

As can be seen from the foregoing analysis, Flood v Times Newspapers Ltd is an important
and innovative case that takes Reynolds privilege in a new direction. Undoubtedly the
changes in the way that the European Court of Human Rights analyses defamation cases
required some corresponding readjustment of English law. Appropriately enough,
Reynolds privilege will now be less widely available than when it was thought that

45 [2009] EWHC 2375 (QB), [183].

46 [2010] EWCA Civ 804, [2011] 1 WLR 153, [66], [69], [73] (Lord Neuberger MR), [108] (Moore-Bick LJ),
[118] (Moses LJ).
47 [2009] EWHC 2375 (QB), [81].
48 Jameel v Wall Street Journal Europe Sprl [2007] 1 AC 359, [62].
 28 Journal of Media Law

defamation claims only engaged Article 10. Indeed, despite Lord Neuberger MR’s caution
regarding reliance on nineteenth-century case law, the recognition that courts today are
seeking to balance the right to private life against the right to freedom of expression
suggests that earlier decisions—where the courts were engaged in the same basic
enterprise—should be more useful than had previously appeared to be the case.
It may be, however, that further analysis of the consequences of the human rights
position will be needed. Shortly before the Court of Appeal’s decision in Flood, Tugendhat
J decided Thornton v Telegraph Media Group Ltd,49 in which he suggested that not all
defamation claims will engage Article 8: defamation in relation to professional attributes
would not engage Article 8, but only—at most—Protocol 1, Article 1 (right to property).50
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If this is correct, it would indicate that a different balancing exercise has to be undertaken
depending on whether the defamatory allegation is personal or professional. For purely
professional allegations, it may well still hold true that freedom of expression should take
precedence, and that, therefore, Reynolds privilege should apply in its original, unamended
form.
At a broader level, the Court of Appeal in Flood v Times Newspapers Ltd seems to be
taking a more interventionist role in developing Reynolds privilege, and also regarding
itself as setting, rather than deferring to, standards of responsible journalism. In two
respects, however, further clarification is needed: first, on the question of whether it is
really appropriate to regard Reynolds privilege as a question of law; and second, on the
extent to which the ideas underlying contempt of court can be accommodated within
the existing criteria of responsible journalism. The defendant has been granted leave to
appeal to the Supreme Court,51 so we may soon have the answers to these questions.

49 [2010] EWHC 1414 (QB), [2010] EMLR 25.

50 Ibid, [38]. See also Thornton v Telegraph Media Group Ltd [2011] EWHC 159 (QB), [34] (Tugendhat J).
51 See www.supremecourt.gov.uk/news/permission-to-appeal.html (accessed 27 May 2011).