DEFAMATION
Artists, Radio and Television, Internet
ARTICLE:
Jonathan Coad, Solicitor

England’s libel laws make London a favorite destination for foreign claimants. But actions do not always succeed and the Court of Appeal have thrown out a claim brought by a Saudi businessman against the US published Wall Street Journal online on the grounds that practically no-one in England had read the offending article – only five people had clicked on the link.
This action arose from an article which was posted by the defendant in the United States via a subscriber service to the Wall St Journal. The claimant sued on the basis that the material bore the defamatory meaning that he provided financial support to Al Osama Bin Laden and Al Qaeda. It was assumed for the purposes of the appeal that only five UK subscribers had accessed the posting. It was asserted by the defendant that of those five two did not know Mr Jameel, and that the other three were his solicitor, a director of an associated company and a consultant to Mr Jameel’s group of companies.
In its judgment, the Court of Appeal affirmed the presumption of damage on the part of someone defamed without the need to prove that anyone knowing the claimant had read the article. This presumption is for all practical purposes irrebuttable.
Furthermore, the Court of Appeal laid down that claims where there has been only very limited circulation can be dealt with by proper directions to a jury, and can (in extreme circumstances) be dealt with by applications to strike out an action as an abuse of process. It said that the courts are more ready to entertain such submissions after the introduction of the Civil Procedure Rules and the Human Rights Act 1998 (based on the European Convention for Human Rights). The courts will stay proceedings that are not serving the legitimate purpose of protecting a claimant’s reputation, including compensating one whose reputation has been unlawfully damaged.
The court stated that where as in this case a claimant was seeking vindication, but there had been only minimal publication in this jurisdiction, a claimant cannot justify proceedings in this country on the basis that he might thereby be vindicated worldwide. In this case, whereas a modest award of damages might constitute vindication for damage done to Mr Jameel’s reputation in this country, the damages and vindication would be minimal, and the attendant costs wholly disproportionate. Dismissing a claim as an abuse of process does not constitute an infringement of Article 6 of the Convention (right to a fair trial) where such infringement is insubstantial. It may be different if there was a real risk of wider publication, but there was no such risk in this case and the prospect of the defendant repeating the article was remote, therefore obviating the need for an injunction. The Court of Appeal has therefore taken a pragmatic view, and exercised its case management powers where the real potential value to the claimant of libel litigation is so small that neither the expenditure of the court’s time nor the defendant’s resources are justified in achieving it.
The case is also another example of the Reynolds defence failing. When the Reynolds privilege defence was created by the House of Lords some five years ago, many thought that it would substantially widen the extent of the Article 10 right conferred on the media by the European Convention on Human Rights (the right to a freedom of expression – the freedom of the press) and the scope for reporting matters of public interest would be considerably widened. Since then, virtually every Reynolds defence has, however, failed. The most recent Court of Appeal decision indicates that the standards expected of any journalist seeking to rely on this defence will remain high. This case was also used by the Court of Appeal to stress the public interest requirement of the Reynolds test. In broad terms the Reynolds defence gives a journalist a defence against a claim of defamation where the Journalist can show that the reporting was reasonable and neutral. Lord Nicholls set out a ten point checklist which would have to be satisfied in the 1999 House of Lords judgment in Reynolds v The Times. The defence recently failed in the case of Galloway v The Telegraph where the court found that the Telegraph’s reporting was not neutral and failed the tests.
The Wall St Journal was appealing against the decision of Mr Justice Eady in rejecting its qualified privilege defence in an action brought against it by Mr Jameel over allegations of support for Al Qaeda. In particular the Wall St Journal sought to persuade the Court of Appeal that the judge had misdirected the jury as to the application of the presumption of falsity to the defence of qualified privilege, that he had applied the wrong test, and that the presumption that the Wall St Journal had suffered damage was incompatible with Article 10 of the Convention.
The Court of Appeal confirmed that the test was whether the publisher had acted as a responsible journalist in publishing the article. That would be assessed on how the position would have appeared to the publisher at the time of publication. The truth or otherwise of the article was not normally relevant, but the jury had to be directed to presume that the defamatory allegation was false when considering liability and damages, while not applying that presumption when resolving issues of fact to be considered in deciding whether the defence of qualified privilege should not apply.
The Court of Appeal affirmed Mr Justice Eady’s conclusion that the phrase ‘responsible journalism’ was insufficiently precise to be the sole test for this form of privilege, and that not only had responsible journalism to be demonstrated, but the subject matter of the publication had to give rise to a public interest that it should be published. It was not sufficient that the public might be interested in receiving the information. The Court of Appeal held that the responsible journalism test required a belief on the part of the journalist in the truth of the article’s defamatory implications, which accordingly has become a further obligation on the part of the defendant.
The constitutional difficulty with the Reynolds defence is that if it is established by the publisher by virtue of his Article 10 rights, then the Article 8 right of the claimant to his reputation is lost (Article 8 is the right to respect of privacy and family life). This can have catastrophic financial and personal consequences for an individual, and can be equally devastating for a corporation. It appears that the Court of Appeal recognised this in setting the threshold of responsible journalism at a high level in order to keep a proper balance between the Article 8 and Article 10 rights which are engaged in such cases.

by Jonathan Coad, Solicitor.

This update is © The Simkins Partnership – http://www.simkins.com. This bulletin is for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court.

See Law Updates January 2005 George Galloway wins battle against Telegraph
See Law Updates November 2004 ISPs weakest link when it comes to free speech
See Law Updates November 2004 Cream Holdings Ltd v Banerjee & others
See Law Updates July 2003 Harrods v Dow Jones which is a decision concerning worldwide liability for publications. Whilst the court found that Dow Jones could be liable even for a limited circulation in the UK, ultimately the action failed as no damage was found.
Also see the leading Australian case on publication on global publication by way of the internet in Dow Jones & Company Inc v Gutnick, [2002] HCA 56, where the defendant was granted the right to sue Dow Jones, a US publication but published and receivable in Australia in the Australian courts;
Also See Law Updates March 2004 for the Canadian decision by the Ontario Superior Court of Justice that it held that the Canadian courts had jurisdiction over the online version of the Washington Post, a US publication.

However in Criminal Proceedings Against Lindqvist ECJ C101/01 the European Court of Justice held that a posting on the internet was not a transmission of the information posted to a third party country (Law Updates November 2003)