How a Journalist Came to Understand Jim Flavin's Position

You are a journalist. You are lucky enough to receive a story exclusively which turns out to be sensational and publishable. Following publication, your paper's circulation and advertising rates rise dramatically. You earn satisfying amounts of extra cash on TV and radio talking about the story, and from commissioned articles all over the world. You are promoted to a more senior position.

The story is about the boss, Mr Big, of major company A plc which was attempting to take-over a slightly less major one, B plc.

The take-over is aborted, and the boss, though denying the story, loses the confidence of his board and retires. Shortly afterwards, B plc is taken over by C plc. It so happens that members of your family, but not you, own lots of shares in C plc. You didn't know about the shares. No-one knew at the time of publication of your story that C plc was remotely likely to buy B plc.

Not so long after that, it emerges that your story was a massive hoax, in which you were a totally innocent dupe like everyone else.

Mr Big comes after you, alleging that you were not innocent at all, that you dreamed the whole thing up yourself, and that you among other things defamed and defrauded him to promote your own career and earn money both for yourself and for your family. He sues for defamation and demands that you be prosecuted for fraud.

The defamation action proceeds, but the police are "still investigating the case".

You, and only you, know the full truth, which is that you are actually totally innocent, in the sense that you believed that your story was true, and that you genuinely had no idea that C plc was owned in part by your family. You also knew all along, though, that your anonymous informant was involved with C plc. You have never disclosed her identity - even to your editor. You didn't disclose her connections because you did not think that they were relevant, although the paper's legal adviser had suggested that you might need to examine your conscience. Notwithstanding all that, you defend that because you say, and many agree with you, that you not possibly have realised how really relevant it was.

The defamation action comes on for trial. You successfully defend it in the High Court, on the basis of the new "reasonable publication" defence created by the Defamation Act 2009.It is quite clear that even the Reynolds privilege would not have sufficed under the pre-2009 legal position. The judge is very unhappy that enormous damage has been done to a lot of lives by your false story, but agrees that you were bona fide fairly careful and lays some emphasis on the fact that your editor and you spent hours discussing the legalities of publishing with solicitor and senior counsel before deciding to publish.

In her judgment, the judge also forensically (your fave word, until the appeal !) examines the evidence for Mr Big's assertions that you were motivated by malice against him, that your informant perpetrated the hoax in order to stymie the A plc/B plc deal, that you knew this, and that you happily went along with it because it suited your family members. She clearly and emphatically finds that each and every one of these claims is at variance with the evidence.

During the trial, Mr Big's legal team made an issue of whether the 2009 Act actually applied. It was an entirely technical issue of whether or not the relevant part of the Act had been brought into effect by Ministerial order on the date of publication of your story. (As is fairly standard, the Act has a provision that meant it did not become law until the Minister for Justice made an order bringing it into effect). The High Court judge decided that it had, because the Minister had indeed signed the order, even though it remained sitting on his desk throughout the period that the story ran.

Mr Big appealed to the Supreme Court on this latter point alone. The appeal succeeded, the court taking the opportunity to clarify the important constitutional principle that a document signed in private cannot change the law until promulgated in public. The senior judge made no attempt to hide his dislike of the new Act, and prefaced his judgment with some robust remarks about it being a charter for smart-aleck trust-fund junkies who wanted the freedom to destroy the careers of public figures without ever having to justify their smears cloaked in the language of serving the public interest.

Although you do not have a trust-fund, and the judge was probably unconsciously echoing (it happens) someone else's attack on a well-known former journalist turned successful author, everybody you know seems to take it as an accurate label for yourself. Some of your best friends even take to calling you "TFJ" semi-affectionately, and the nick-name sticks. Worse, everyone - even your own colleagues ! - incorrectly thinks that the whole Supreme Court decided that the High Court judge was wrong to dismiss Mr Big's nasty claims about your good faith.

There is outrage when the DPP announces that you will not be prosecuted.

You suffer a nervous breakdown ("go bananas"), and never write a by-lined story again.