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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Al-Fagih v HH Saudi Research & Marketing (UK) Ltd  EWCA Civ 1634 (5 November 2001)
Cite as:  EWCA Civ 1634,  All ER (D) 48,  EMLR 13,  EMLR 215
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(Mrs Justice Smith)
London, WC2A 2LL
Monday 5 November 2001
B e f o r e :
LORD JUSTICE MANTELL
LORD JUSTICE LATHAM
- and -
|H.H. SAUDI RESEARCH & MARKETING (U.K.) LTD
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Miss Adrienne Page QC & Mr Harvey Starte (instructed by Davenport Lyons of London W1S 3NL) for the Respondent
Crown Copyright ©
LORD JUSTICE SIMON BROWN:
"The defendant also claimed qualified privilege, submitting that his readership had a need and right to know what [AM] and the claimant were saying about each other. The defendant had done no more than provide an accurate day-to-day account of the unfolding dispute. It had not taken sides. It had not adopted the allegations and counter-allegations as true but had merely reported what each had said. Its staff had no reason to believe that the words complained of were not true. The defendant had observed the standards of responsible journalism. I rejected that defence as I did not accept that the defendant had observed the standards of responsible journalism. [AK] had made no attempt to verify the truth of [AM's] allegation as he could and should have done. When the series of articles was viewed as a whole, I considered that the defendant had taken sides and had implied that the allegation was true. Although I recognised that there was some public interest in the reporting of this dispute, I held that the potential harm to the claimant from the publication of the unverified allegation outweighed the public interest in publication."
"Al-Mas'aari said 'Sa'ad Al-Fagih accused my mother of bringing women to me at home after he saw a woman I had intended to marry enter my house in London to visit my mother when I was not in the house. It seems that his state of mind has deteriorated in recent months to the stage where he would say this. One of Al-Fagih's acquaintances had recorded statements by Al-Fagih saying improper things about me. I said to that acquaintance that he is a liar. He said he will swear by the Koran that this is true. I said to him 'Leave the Koran in your heart. I require a recorded tape of these accusations.'"
"53. the House of Lords in Reynolds set their faces firmly against the creation of any special categories of material. They did so for a variety of reasons, one of which is the difficulty of deciding where to draw the boundaries of the category. The House preferred the flexibility of the duty-interest test, considered in the light of the particular circumstances. I accept [the defendant's] submission to the extent that the duty to verify the underlying truth of an allegation may be of less importance in a case where a newspaper provides a fair and accurate report of what has been said and does not state or imply that it is true. That would be so especially in cases where the very fact that the allegation has been made is a matter of genuine public interest. But acceptance of that submission is no more than the provision of an example of a general proposition that the weight to be attached to any particular factor will vary from case to case."
"54. In my view the decision on whether qualified privilege attached to the publication of the words complained of must in the end be determined in the light of what was known to the defendant at the time of publication or, more accurately, at the time the decision was taken to publish. However, the existence and coverage of the continuing dispute is relevant to the assessment of the importance of the material to the public interest and the balancing of that with the way in which and the extent to which the claimant's reputation was damaged. So, the journalist's conduct is to be judged principally at the time of the decision to publish although the rectification of his omission to put the claimant's side of the story on the following day is obviously relevant. The public interest and the final balancing exercise must be considered in the context of the whole coverage of the dispute."
"55. I consider first the nature of the material published in the whole dispute and the extent to which that was a matter of concern to the limited section of the public which comprised the readership of Ash-Sharq Al-Awsat in the U.K. I do accept that the news of the split within the Committee was a matter of real interest and concern to the readership. It was important news. The reports included many damaging allegations made by [AM] against [AF], besides the words complained of. [AF] also made some statements which were damaging of [AM], although these were fewer, less specific and much less damaging. Much of the material reported covered allegations which were of an obviously political nature. I refer, for example, to [AM's] allegations that [AF] was a closet supporter of the Saudi regime and that he sought to exercise complete control of the Committee's activities without consulting his colleagues. Such allegations are damaging and defamatory but are of obvious political importance. The mere fact that such allegations are being made is of public interest and importance. I observe also that such allegations are the common currency of political warfare and by their very nature difficult if not impossible to verify. In respect of this kind of allegation I accept [the defendant's] submission that where two politicians voluntarily enter into a public dispute they must expect to have this kind of allegation published about them.
56. However, that material is not complained of. I am concerned only with the dissemination of [AM's] accusation that [AF] is a purveyor of malicious sexual gossip. I accept that such an allegation, if it could be stated with reasonable reliability to be true, is a matter of proper public interest as many would think such a man unfit for office or political leadership. If the allegation were known to be untrue and was stated to be untrue, there would be a legitimate public interest in that the report would show that [AM] was a man willing to make untrue and scurrilous allegations about a colleague. The readers would have a legitimate interest in knowing the kind of man he was and some might say he was unfit for office. What is the public interest in putting the allegation in the public domain and leaving the public to make its own mind up about whether it is true or not? That is what [AK] said he was doing. He said he thought the allegation was true or at least that there was something in it because [AM] had said it and he was a religious man. Moreover, the original press release of 5th March had been signed by two others besides him. But he agreed that he did not know whether it was true. He said there was no way he could tell. He could not suggest any method by which the public would be able to make their minds up. Accepting for the moment the defendant's claim that it did not adopt the allegation or in any way imply that it was true, it seems to me that the only possible proper public interest in the allegation as presented is that it could be said to show the public the kind of people there were on this Committee. Where ever the truth of the allegation lay, one or other (or possibly both) of the leading members of the Committee was a purveyor of scurrilous gossip. Either or both were disreputable men. I can see that that may provide some basis for a proper public interest which would not depend upon the underlying truth of the allegation. But apart from receiving the message that the Committee comprised disreputable men, the public is left without any greater understanding of the situation. They do not know whom they are supposed to believe or disbelieve or whom they are to approve or disapprove of. They are left to speculate about the truth. This is the kind of material which the public might find very interesting but which they could have only a very limited proper interest in receiving. That limited public interest will have to be considered in conjunction with the obvious potential damage to [AF's] reputation if the material turns out to be untrue.
57. I consider next the seriousness of the allegation. As Lord Nicholls observed, the more serious the charge, the more the public is misinformed and the individual harmed if the allegation is not true. It is common ground that I must look at the seriousness of the words complained of through the eyes of the Arab or Muslim readership of Ash-Sharq Al-Awsat. [AK] said that allegations of a sexual nature are very serious in Muslim society and allegations against women are more serious than against men. [AF's] unchallenged evidence was that in Muslim society the making of allegations about sexual matters brings greater opprobrium on the maker of the allegation than upon the person spoken about. Also he said that to say something about somebody's mother is 'the lowest of the low'. I note also that the victims of the alleged gossip were people who were supposed to be [AF's] close friends. Perhaps I am there introducing a 'western' element into consideration as neither witness mentioned that point. However, on any view, this was a very serious allegation indeed. It struck at [AF's] personal integrity, his credentials as a man of deeply held religious belief and his fitness for political leadership.
58. [AK] accepted that when considering whether to publish a potentially harmful allegation such as this, a responsible journalist should usually consider whether he has reasonable grounds for believing it to be true. He agreed that if he had believed it to the untrue, it would be wrong to publish it. But he said that as he was only reporting what [AM] had said and was not adopting it or implying that it was true, he was not under any duty to verify it. He considered it would be impossible to verify. Accepting for the moment and for the sake of argument that the report was fair and accurate and did not imply that the allegation was true, in my judgement there may still remain some duty to verify. This will arise particularly in a case where the source of the material cannot be regarded as reliable and authoritative. The duty will also depend on how damaging the material is, how important it is for the public to receive the material straight away and how easy or difficult it will be to find verification. [AK] said he thought the allegation was true. Whatever he believed about its truth, he knew that [AM] and [AF] were on opposing sides in a serious dispute. In his witness statement he described the two men as 'bitter rivals'. He knew that [AF] had emphatically denied the general allegations in the press release. He also knew that [AF] was supposed to be a religious man just as [AM] was, In my judgment, no reasonable journalist in his position could have regarded [AM] as an authoritative or reliable source. Anyone should have seen that he had an 'axe to grind'. [AM] did not actually assert that he had heard the tape recording of [AF] saying these scurrilous things. He implied that he had done. But [AK] did not even ask him to confirm that he had. Nor did he ask that [AM] should obtain them for him. He wrote his article and sent it off. He did not contact [AF] for his response. He said there was no time. Even accepting that this was so and his deadline for that night was 6pm, he should at the very least have repeated [AF's] general denial from the day before. He accepted that that was so. But in my view that would not have been enough. Objectively considered, there was no real need to include that particular allegation in that night's copy. The story was obviously going to run a little longer and publication should properly have been delayed pending verification and comment from [AF]. It is not for me to speculate about what the situation might have been when [AK] found that [AM] could not produce a tape recording. That might or might not have caused him to doubt [AM's] word. I say no more of that. I say only that bearing in mind the damaging nature of the material and the partisan position of its source, a responsible journalist would have waited and sought to verify the truth of the allegation and [AF's] response.
59. That is my view of the position on the assumption that the article concerned was a fair and accurate report of what had been said by [AM] and did not contain any assertion or implication that the allegation complained of was true. In fact I accept that looked at in isolation, the article met those criteria, save that it did not include anything of [AF's] side of the story. But even so, I take the view that [AK's] duty of responsible journalism required him to undertake the obvious and simple step of verification by seeking production of the tape. In my view, the correction on the following day of the omission not to put [AF's] side of the story does not meet the real gravamen of the complaint against him, which is his failure to verify.
61. As I have said [the defendant] can properly say that the words complained in the text of the article of 7th March are an accurate report of what [AM] said to him and the words are clearly attributed to him. There is nothing in that article by which [AK] adopts the words as true or implies that they are. I would not say that that article was unfair or inaccurate except in that it did not contain [AF's] side of the story and not even a repetition of his general denial made the day before. But that was rectified the next day. However, I do not think that [the defendant] can make good his claim to fair, accurate and pure reportage when the whole series is considered. The longer the dispute went on the more it appeared that the newspaper believed and invited its readers to believe in[AM] as being generally truthful and [AF's] denials as untrue
62. However I look at the publication of the words complained of, whether as an individual article or as a part of the coverage of an important dispute, I reach the same conclusion. In the balance in favour of free publication is the public interest to know everything about this dispute but, as I have said, the interest in hearing this allegation without knowing whether it is supposed to be true is modest. Once the series of articles begins to imply that the allegation is true, the public interest may be increased. In the other side of the scales, it is clear that the repetition of the allegation would be seriously damaging to [AF's] reputation if it turned out to be untrue. As the series begins to imply that the allegation is true, the potential damage increases correspondingly. No attempt was ever made to verify the allegation although the source was obviously partisan. An attempt at verification would have been very easy. In my judgement, the balancing exercise results in a clear conclusion that the public interest in unfettered communication ought in this case properly to be restricted as being necessary for the protection of [AF's] reputation. I hold that the defence of qualified privilege fails."
"[Counsel] submitted that some mitigation lay in the fact that [AK] was not recklessly indifferent to the truth of the allegation and that he had 'understandable reasons to believe that verification was not appropriate'. I do not accept that [AK] was not reckless. I think he was."
1. Its political dimension
"41. Whilst the press must not overstep the bounds set, inter alia, for the 'protection of the reputation of others', it is nevertheless incumbent on it to impart information and ideas on political issues, just as on those in other areas of public interest. Not only does the press have the task of imparting such information and ideas: the public also has a right to receive them
42. Freedom of the press furthermore affords the public one of the best means of discovering and forming an opinion of the ideas and attitudes of political leaders. More generally, freedom of political debate is at the very core of the concept of a democratic society which prevails throughout the Convention.
The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance. No doubt Article 10(2) enables the reputation of others that is to say, of all individuals to be protected, and this protection extends to politicians too, even when they are not acting in their private capacity; but in such cases the requirements of such protection have to be weighed in relation to the interests of open discussion of political issues."
"The court should be slow to conclude that a publication was not in the public interest and, therefore, the public had no right to know, especially when the information is in the field of political discussion."
"Reputation forms the basis of many decisions in a democratic society which are fundamental to its well-being: [including] whom to vote for. Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one's reputation. When this happens, society as well as the individual is the loser. ... It is in the public interest that the reputation of public figures should not be debased falsely. In the political field, in order to make an informed choice, the electorate needs to be able to identify the good as well as the bad."
"If the words had not been repeated by the newspaper, the damage done by [the maker of the allegation] would be as nothing compared to the damage done by this newspaper when it repeated it. It broadcast the statement to the people at large. "
"1. In a modern, developed society it is only a small minority of citizens who can participate directly in the discussions and decisions which shape the public life of that society. The majority can participate only indirectly, by exercising their rights as citizens to vote, express their opinions, make representations to the authorities, form pressure groups and so on. But the majority cannot participate in the public life of their society in these ways if they are not alerted to and informed about matters which call or may call for consideration and action. It is very largely through the media, including of course the press, that they will be so alerted and informed. The proper functioning of a modern participatory democracy requires that the media be free, active, professional and inquiring. For this reason the courts, here and elsewhere, have recognised the cardinal importance of press freedom and the need for any restriction on that freedom to be proportionate and no more than is necessary to promote the legitimate object of the restriction.
2. Sometimes the press takes the initiative in exploring factual situations and reporting the outcome of such investigations. In doing so it may, if certain conditions are met, enjoy qualified privilege at common law, as recently explained by this House in [Reynolds]. In the present case the role of the press is different. It is that of reporter. The press then acts, in a very literal sense, as a medium of communication."
"a. The meeting must be bona fide and lawfully held for a lawful purpose. b. It must be one for the furtherance or discussion of a matter of public concern. c. It must be a fair and accurate report of the proceedings. d. The report must be of a matter of public concern and for the public benefit. e. The defence is lost if the publication is proved to have been made with malice. f. The newspaper loses the privilege if it refuses or neglects to publish a requested explanation or contradiction."
"No genus is satisfactory, nor is any genus more satisfactory than the criterion of what it is in the public interest that the public should know and what the publisher could properly consider that he was under a public duty to tell the public."
"One difficulty with this suggestion is that it would seem to leave a newspaper open to publish a serious allegation which it had been wholly unable to verify. Depending on the circumstances, that might be most unsatisfactory."
LORD JUSTICE MANTELL:
"The public interest and the final balancing exercise must be considered in the context of the whole coverage of the dispute."
"Such allegations are damaging and defamatory but are of obvious political importance. The mere fact that such allegations are being made is of public interest and importance. I observe also that such allegations are the common currency of political warfare and by their very nature difficult if not impossible to verify. In respect of this kind of allegation I accept (the defendant's) submission that where two politicians voluntarily enter into a public dispute they must expect to have this kind of allegation published about them."
LORD JUSTICE LATHAM:
"This is the kind of material which the public might find very interesting but which they could have only a very limited proper interest in receiving"