A recent High Court case, in which Times Newspapers Ltd ("TNL") was ordered to pay a claimant £60,000 in damages in respect of a defamatory story which they had failed to take down, shows the importance of keeping old material on your website under review. The case serves as a cautionary tale for publishers of internet content. Defences to defamation claims that were available at the time of original publication may also fall away as time goes by. It is always best practice to be aware of your website's current content and to review or remove content which is no longer defensible.
Mr Flood, a member of the Metropolitan Police Service's ("MPS") Extradition Unit, brought a libel claim against TNL in May 2007 in relation to a story published about him on The Times' website on 2 June 2006 entitled "Detective accused of taking bribes from Russian exiles". At the time the article was published, the Directorate of Professional Standards ("DPS") of the MPS was investigating allegations of corrupt practice said to have been committed by Mr Flood. However, on 2 December 2006, the investigation closed, concluding that there was no evidence that Mr Flood had done anything to warrant criminal or disciplinary proceedings. The journalist who had written The Times' story on Mr Flood was informed of the finding on 5 September 2007.
TNL did not, however, remove the article from its website when it learnt that the investigation against Mr Flood had been dropped. In fact, it did not update the page to report on the outcome of the investigation until October 2009. Before that, the only alteration to the article was a warning that read"this article is subject to a legal complaint."
In proceedings that reached the Supreme Court, TNL claimed a public interest defence (Reynolds) in relation to the story. The Supreme Court accepted this defence, but only in respect of publication of the story up to 5 September 2007. The High Court and the Court of Appeal had held that the Reynolds privilege defence failed in respect of the website publication of the story after 5 September 2007 (when TNL found out that the investigation against Mr Flood had been dropped), and TNL did not appeal to the Supreme Court on the issue. The publication of the story on The Times' website after 5 September 2007 was, therefore, deemed to be defamatory.
High Court's decision on damages
In a recent hearing in the High Court, Davies J was tasked with setting the amount of damages to be paid by TNL to Mr Flood for the damage caused by TNL's failure to remove its original article about him and its failure topublish the result of the police inquiry.
The evidence in the case was that there were 763 visits to The Times story about Mr Flood between 5 September 2007 and 21 October 2009, of which 549 originated from England and Wales. Mr Flood used these statistics to argue that significant damage to his reputation had occurred after 5 September 2007, from which point TNL could no longer claim a Reynoldsprivilege defence. His wife also gave evidence about the distress caused to him after this time.
Davies J noted, in particular, that TNL was aware of its obligation to publish the result of the police inquiry, because it had been notified of this in correspondence as early as September 2007. Overall, Davies J found that The Times had "refused to act responsibly" and that the continuance of the article on the website undermined Mr Flood's own statement that he had been exonerated. Davies J did not accept that the existing reasoned judgments in the Reynolds trials (which had already concluded that TNL had defamed Mr Flood) vindicated him sufficiently, because "it [was] unlikely that readers of a web article [would] download the judgment and read it with close attention. The general public is concerned to discover the "headline" result".
Davies J awarded a "headline result" of £60,000, which consisted of damages of £45,000 to reflect Mr Flood's distress, anxiety and suffering, the damage to his reputation and his need for proper vindication as well as a further £15,000 to represent the aggravation of those damages by the irresponsible conduct of TNL. This, she said, was to "serve as a deterrent to those who embark upon public interest journalism but thereafter refuse to publish material which in whole, or in part, exculpates the subject of the investigation".