Defamation: Online publishers still in the dark

29 March 2012

The Supreme Court’s recent judgement in the case of Flood v Times Newspapers Limited [2011] UKSC 11 is likely to be greeted in muted terms by both online publishers and technology lawyers.

Both groups had hoped that the judgement would clarify the legal status of allegations/implications contained in articles which remain online in their original form even after facts come to light proving that the original allegation/implication was incorrect.

Flood and Times Newspapers

The original facts of Flood were that, in June 2006, the Times published an article, in which it quoted a source as stating that the Metropolitan Police was conducting an internal investigation into alleged corruption within its Extradition Unit; the article also identified the respondent (Mr Flood) by reporting his denial of any wrongdoing. On completion of the investigation in January 2007 the Metropolitan Police made no recommendation to issue criminal or disciplinary action against Mr Flood, formally clearing him of any wrongdoing.

The appeal by the Times to the Supreme Court had two heads; the first against the Court of Appeal’s finding that the Times should never have identified Mr Flood in its original story and that it was not justified in doing so by the precedent set by Reynolds ; which defined the limits of ‘public interest’ protection available to journalists who report allegations that later transpire to be erroneous. The second head of appeal, of more interest to technology lawyers, was against the finding that the Times had libelled Mr Flood by leaving its original unamended article accessible to the public for a significant period of time after he had been exonerated.

The unanswered question

Frustratingly, time constraints led to the Supreme Court hearing arguments relating to only the first head of appeal (with argument on the second adjourned), meaning that while the legal world is now more knowledgeable about the parameters of Reynolds, it is still none the wiser about the legality of leaving unamended articles online regardless of changing circumstances.

The results of a judgement on that issue could have profound implications for all organisations publishing written works online. A decision which concluded that organisations/individuals do have an ongoing responsibility to update their work in order to ensure that it does not contain libel or slander could be extremely damaging for smaller organisations who might struggle to find the resources to comply with such responsibilities.

An enduring concern is whether a future judgement would make allowances for bloggers, tweeters, and smaller publications that would not have the resources to update their content. If not, this could adversely impact the viability of smaller operators who have become a valuable and incisive voice within the blogosphere and, ironically, a serious source of competition to organisations such as the Times.

Such a judgement would be ironic in that despite being a judgement against the Times, it would likely have the greatest impact on a class of lower budget organisations that have, in recent years, become some of its most dangerous competitors.

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