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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Abdul Latif Jameel Company Ltd. v The Wall Street Journal Europe Sprl  EWHC 37 (QB) (20 January 2004)
Cite as:  EMLR 11,  EWHC 37 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Abdul Latif Jameel Company Limited
|- and -
|The Wall Street Journal Europe SPRL
(instructed by Peter Carter-Ruck and Partners) for the Claimants
Mr Geoffrey Robertson QC
and Mr Rupert Elliott
(instructed by Finers Stephens Innocent) for the Defendant
Hearing dates : 1 – 19 December 2003
Crown Copyright ©
Mr Justice Eady :
"Although 'Reynolds' privilege is stated to be an application of the traditional duty-interest test for qualified privilege, the range of factors to be taken into account in deciding whether or not publication took place on a privileged occasion is such that except in clear-cut cases, it will often be very difficult to advise a prospective claimant on the likely outcome, and the position has been made no easier by the development in Loutchansky v Times Newspapers Ltd of the test of responsible journalism".
"In the final analysis it must be for the court, not the journalist, to decide whether he was acting responsibly".
"At the end of the day the court has to ask itself the single question whether in all the circumstances the 'duty-interest test, or the right to know test' has been satisfied so that qualified privilege attaches. If, of course, it does, then, unless the claimant can prove malice, the defamatory publication is protected irrespective or whether it turns out to be true or false. So much at least of any analysis of Reynolds's case  2 AC 127 one might have thought to be uncontentious".
"Readers and viewers and listeners can make up their own minds on whether they agree or disagree with defamatory statements which are recognisable as comment and which, expressly or implicitly, indicate in general terms the facts on which they are based.
With defamatory imputations of fact the position is different and more difficult. Those who read or hear such allegations are unlikely to have any means of knowing whether they are true or not. In respect of such imputations, a plaintiff's ability to obtain a remedy if he can prove malice is not normally a sufficient safeguard. Malice is notoriously difficult to prove. If a newspaper is understandably unwilling to disclose its sources, a plaintiff can be deprived of the material necessary to prove, or even allege, that the newspaper acted recklessly in publishing as it did without further verification. Thus, in the absence of any additional safeguard for reputation, a newspaper, anxious to be first with a "scoop", would in practice be free to publish seriously defamatory misstatements of fact based on the slenderest of materials. Unless the paper chose later to withdraw the allegations, the politician thus defamed would have no means of clearing his name, and the public would have no means of knowing where the truth lay. Some further protection for reputation is needed if this can be achieved without a disproportionate incursion into freedom of expression.
This is a difficult problem. No answer is perfect. Every solution has its advantages and disadvantages. Depending on local conditions, such as legal procedures and the traditions and power of the press, the solution preferred in one country may not be best suited to another country. The defendant newspaper commends reliance upon the ethics of professional journalism. The decision should be left to the editor of the newspaper. Unfortunately, in the United Kingdom this would not generally be thought to provide a sufficient safeguard. In saying this I am not referring to mistaken decisions. From time to time mistakes are bound to occur, even in the best regulated circles. Making every allowance for this, the sad reality is that the overall handling of these matters by the national press, with its own commercial interests to serve, does not always command general confidence.
As highlighted by the Court of Appeal judgment in the present case, the common law solution is for the court to have regard to all the circumstances when deciding whether the publication of particular material was privileged because of its value to the public. Its value to the public depends upon its quality as well as its subject matter. This solution has the merit of elasticity. As observed by the Court of Appeal, this principle can be applied appropriately to the particular circumstances of individual cases in their infinite variety. It can be applied appropriately to all information published by a newspaper, whatever its source or origin".
"This should not be pressed too far. Where questions of defamation may arise ambiguity is best avoided as much as possible. It should not be a screen behind which a journalist is 'willing to wound, and yet afraid to strike'. In the normal course a responsible journalist can be expected to perceive the meaning an ordinary, reasonable reader is likely to give his article. Moreover, even if the words are highly susceptible of another meaning, a responsible journalist will not disregard a defamatory meaning which is obviously one possible meaning of the article in question. Questions of degree arise here. The more obvious the defamatory meaning, and the more serious the defamation, the less weight will a court attach to other possible meanings when considering the conduct to be expected of a responsible journalist in the circumstances".
Here the Defendant contends that the words were not defamatory in any sense, but for present purposes I am constrained by the jury's finding that the words bore a defamatory meaning. In general terms, it was the Claimants' case that the meaning which an ordinary reader would infer is that there were grounds to suspect them of some degree of involvement in the funnelling of funds to terrorists – and that there is at least the possibility of "witting" involvement. (Mr Hudson's suggestion, as the former Managing Editor, that no reasonable reader could conclude that the phrase "potential terrorist ties" in the headline could apply to the Jameel group was, I thought, disingenuous.) It does not, in the present context, seem to me to matter where on the scale of gravity this defamatory allegation falls, since the effect of the article was to link the Jameel group and Mr Jameel to terrorism at some level. Wherever on the scale they were supposed to fit in, there was no conceivable duty to publish their names, in that context, at that stage.