Online Defamation – The Need for Digital Corrections

The recent English Court of Appeal decision in Flood v Times Newspapers Ltd. [2010] EWCA Civ 804 provides some useful (and, thankfully, technologically adept) advice for online news publishers: if you seek to cloak yourself with the protection of "responsible journalism", then make use of the features that online publishing makes available, and update news pieces so that defamatory allegations which have been shown to be false are modified or corrected.  In short, online publications can be easily corrected – and so they should be.

The Flood case concerns an invocation by a newspaper publisher of what in English law is referred to as the Reynolds privilege (first articulated in the House of Lords decision in Reynolds [2001] 2 AC 127 and expanded upon in the Jameel decision [2007] 1 AC 35) a privilege which inspired the creation by the Supreme Court of Canada of the new defamation defence of "responsible communication in the public interest’" (Grant v Torstar Corp., 2009 SCC 61).  While the English Reynolds privilege and the Canadian "RCPI" defence are different, they share much of the same legal DNA, and so developments of the former should be viewed as important for the latter.

The Flood case involved answering two distinct questions: first, was the initial publication (both in print and online) of certain allegations (ie an accusation of bribe-taking) about Mr. Flood protected by Reynolds privilege and, second, if the answer to the first question was yes, once it became clear that the allegations were false and that Mr Flood had not accepted any bribes, did the Reynolds privilege continue to protect the unmodified online version of the story which was originally published?  Put somewhat differently, if the publisher became aware that the defamatory allegations which it had published were false, did the publisher have any obligation to correct or modify the online version of the story to make it clear that the allegations had no factual basis?

The trial and the appellate decisions in Flood (brief comment on the case from John Gregory at Slaw; a longer treatment by Amanda Carpenter at IPilogue) differed as to whether the initial publication was protected by Reynolds privilege (the trial judge decided yes; the court of appeal decided no).  But both courts were in accord that an online version of a defamatory statement has to be modified to take account of subsequent exculpatory evidence if the publisher of that statement wishes to shelter under Reynolds privilege.  As Lord Neuburger noted at paras. 77-78 of his reasons:

The Judge concluded that, even though the original publication, on 2 June 2006, of the article on the Times website, like the publication of the article in the Times newspaper, attracted Reynolds privilege, it ceased to do so after early September 2007, once TNL had been told the result of the DPS investigation and the conclusion reached in the Report. As the Judge put it, at [2009] EWHC 2375 (QB), paragraph 249, "The failure to remove the article from the website, or to attach … a suitable qualification, cannot possibly be described as responsible journalism. It is not in the public interest that there should continue to be recorded on the internet the questions as to [DS Flood’s] honesty which were raised in 2006, and it is not fair to him. It is not in the public interest … "

On the face of it, at least, that conclusion appears to be not merely one which the Judge was entitled to reach: it was plainly right, and indeed appears to be consistent with the decisions of this court in Loutchansky [2002] QB 783 and (on effectively the same facts) of the European Court of Human Rights in Times Newspapers Ltd v UK (Nos 1 & 2) (application nos 3002/03 and 23676/03), 10 March 2009. If the original publication of the allegations made against DS Flood in the article on the website had been, as the Judge thought, responsible journalism, once the Report’s conclusions were available, any responsible journalist would appreciate that those allegations required speedy withdrawal or modification. Despite this, nothing was done.

To echo Lord Neuberger, that conclusion seems manifestly correct: given the ease with which online stories can be corrected, it is astonishing the extent to which they so often are not (I commented on the problem briefly in this piece: Corrections in the Digital Age).  As Lord Justice Moses noted in his reasons in Flood (at para. 119):

That a person is accused is generally of far greater interest than his or her subsequent triumphant acquittal. Once an accusation is dismissed, the blaring headline of accusation on page 1 becomes a tepid reference in the graveyard of page 2.

There seems no compelling reason to allow an online publication to preserve a defamatory statement as if it were in amber – indeed, there seems little cogent argument as to why incorrect (never mind defamatory) statements are not immediately corrected once the correct information is known.  Hopefully the possibility that a lack of correction will suffice to strip a statement of Reynolds protection will properly incentivize publishers to undertake such corrections.

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Bob Tarantino

About Bob Tarantino

Bob Tarantino is Counsel at Dentons Canada LLP and focuses his practice on the interface between the entertainment industries and intellectual property law, with an emphasis on film and television production, financing, licensing, distribution, and IP acquisition and protection. His clients range from artists and independent producers to Canadian distributors and foreign studios and financiers at every stage of the creative process, from development to delivery and exploitation.

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