A crucial week for the cause of free expression

For those who care about free expression in the UK, and particularly the reform of our invidious libel laws, this is a crucial week. Today and tomorrow, the UK Supreme Court hears the Times’s attempt to overturn an appeal court ruling in a libel case brought against it by Metropolitan Police officer Gary Flood.
 
On Wednesday the Joint Committee on the Draft Defamation Bill produce its first report. There are grounds for hope that it will suggest strengthening some key areas, paving the way for full legislation early in 2012 — if the government can be persuaded to find parliamentary time. They should, as this will be a win-win for the coalition government, making it harder for sheikhs and oligarchs to use English courts to silence their critics around the world.
 
In the meantime, there are still a number of tricky cases on the stocks. The Flood case involves allegations (later found to be untrue) that the policeman concerned had taken bribes. The Times journalists, in reporting a Met inquiry, felt it correct to raise the allegations and the name of the accused. Though Flood was found to have done no wrong, he alleged that the continuing presence of the report of allegations on the Times’ website impugned his reputation, and sued.
 
Here it gets techie. The Times’ defence has so far focused on the “Reynolds Defence” (named for the former Irish Taoiseach), a check list of criteria which is supposed to offer reporters some defence in defamation cases.

Reynolds is often cited as a defence, but not very often used: indeed, the Times’s initial victory in this case was the first time a UK paper successfully deployed the defence.
 
The Reynolds defence had previously been deployed successfully by the Wall Street Journal in the infamous “Jameel” case, when the newspaper reported allegations that Saudi bank accounts were being monitored by the US for signs of terrorist funding. Mohammed Jameel, whose company was among those alleged to be under surveillance, sued, but the WSJ was able to fend him off. This case was previously seen by many as proof that Reynolds offered a public interest defence for the press.
 
But the court of appeal ruling which overturned the verdict throws up serious doubts about this. As legal commentator Siobhan Butterworth has pointed out:

“Those who thought the legal landscape was altered radically by Reynolds and Jameel appear to have been quite deluded. Reading the court of appeal’s judgment in Flood, I’m left wondering whether the defence of Reynolds privilege might be a figment of the imagination. There is a danger that this defence is only theoretically available and then only in a perfect world.”

The concern for my organisation, Index on Censorship, and for our partners in the Libel Reform Campaign is that new libel laws will formalise a kind of Reynolds Defence in future legislation, without taking into account our concerns over its suitability for investigative journalists or as a defence for NGOs, scientists, bloggers — anyone who publishes (which in the social media age, is nearly all of us). The defamation bill committee must take concern into account in its findings. Getting the public interest right is absolutely essential to defend freedom of expression.

John Kampfner is Chief Executive of the Index on Censorship.