Liberalising Qualified privilege

Jameel and Ors. v Wall Street Journal Europe Sprl [2006] UKHL 44

 

 

INTRODUCTION

This landmark judgment of England’s House of Lords (shortly to become Britain’s Supreme Court) at once restated and strengthened the principles set down by an earlier panel of the House of Lords in Reynolds v Times Newspapers Ltd [2001] 2 AC 127. Reynolds had developed the traditional common law defence of qualified privilege in libel cases to establish a public interest defence to protect to a certain degree newspaper articles which were the product of responsible journalism. This marked a significant development of the traditional defence of qualified privilege in which a privileged occasion arises out of a duty to communicate information to the public generally and a corresponding interest in receiving it (“the duty and interest test”). Qualified privilege would only be relevant where a statement made is in fact defamatory and untrue.

 

The case of Jameel v Wall Street Journal Europe, a libel action, arose from an article in The Wall Street Journal Europe (“the newspaper”), “a respected, influential and unsensational newspaper” (Lord Bingham at paragraph 2 of the judgment). The background to this case was the “defining event of the century”, that is, the terrorist attacks on and destruction of the World Trade Center in New York, USA, and the other atrocities of 11 September 2001. The heading and sub-headings of the article were, respectively: “SAUDI OFFICIALS MONITOR CERTAIN BANK ACCOUNTS Focus Is on Those With Potential Terrorist Ties”.

 

The article reported that the Abdullatif Jamil Group of companies was among 150 accounts being monitored by the Saudi Arabian Monetary Authority (“SAMA”) to “uncover whether those listed in suspect lists have any real connection with terrorism” (Lord Hoffmann quoting, paragraph 41). Mohammed Abdul Latif Jameel (“Jameel”), the first claimant, and Abdul Latif Jameel Company Ltd, the second claimant, of which Jameel was the general manager, president and principal figure. The writer of the article was Mr James Dorsey, the newspaper’s special correspondent in Riyadh, Saudi Arabia. The newspaper claimed that the sources for the article were a prominent Saudi businessman, a banker, a US diplomat, a US Embassy official and a senior Saudi official. The article went on to state that the Jameel group was not available for comment.

 

Jameel and the second claimant sued the newspaper for libel and won at the High Court and the Court of Appeal. The newspaper appealed to the House of Lords. There were 2 issues before the House of Lords:

 

  1. Whether a trading corporation (as opposed to an individual) may sue for libel and recover damages without pleading or proving special damages.
  1. Whether  Reynolds privilege applied and its scope.

 

The newspaper won the appeal on both issues, with a majority affirmative decision on issue (a) (Baroness Hale thought a trading corporation ought to show that the libel was likely to cause a financial loss; Lord Hoffman agreed with her) and a unanimous affirmative decision on issue (b). This article will focus on the second issue as it has more far-reaching consequences.

 

In strengthening the Reynolds defence, all of the law lords agreed that the defence comprised 2 elements:

 

(i) Whether the subject matter of the publication is of public interest.

(ii) Whether the publisher acted reasonably and fairly in publishing the information, that is, whether the publication was the product of responsible journalism.

The publisher can rely on the Reynolds defence once these elements or conditions are established (Lord Hoffman, paragraph 57).

 

 

PUBLIC INTEREST

On the first element of public interest:

 

  1. Lord Hoffmann (with whom Baroness Hale agreed) was of the view that the thrust of the article ought to be considered as a whole and the question of public interest is to be decided by the judge (paragraph 49). In this case, the thrust of the article was to inform the public that the Saudis were cooperating with the US Treasury in monitoring bank accounts in the aftermath of the terrorist attacks on and destruction of the World Trade Center in New York, USA. The public interest of the subject surely cannot be denied.
  1. The two-stage process (duty and interest test) is not employed to determine public interest. If the publication is in the public interest, the duty and interest are then taken to exist (paragraph 50).

 

Although the question of whether the story as a whole was a matter of public interest must be decided by the judge, the issue of whether a defamatory statement should have been included is a matter of story presentation and allowance must made for editorial judgment or decision (unless it was made in a casual, cavaliar, slipshod or careless manner: Lord Bingham, paragraph 33). If the article as a whole is in the public interest, opinions may differ on the details needed to convey the general message. The fact that the judge with hindsight would have made a different editorial decision should not destroy the defence (paragraphs 50 & 51).

 

In Jameel v Wall Street Journal Europe, the inclusion of the names of large and respectable Saudi businesses was an important part of the story, showing that co-operation with the US Treasury was not confined to a few companies but extended to main Saudi companies (paragraph 52).

Although this case dealt with a publication in a newspaper, the defence is available to anyone who published material of public interest in any medium (paragraph 54).

 

 

RESPONSIBLE JOURNALISM

 

On the second element of responsible journalism:

 

  1. If the publication fulfils the test of public interest, the next issue is whether the steps taken to gather and publish the information were responsible and fair. The question in each case is whether the publisher behaved fairly and responsibly in gathering and publishing the information (paragraphs 53 and 54).
  1. Did the newspaper in this case satisfy the conditions of responsible journalism? It was held that the author of the article did indeed make the necessary verification with its sources, particularly in Washington DC and that, although it would have been better if the newspaper had delayed publication to give Jameel an opportunity to comment in person, their failure to do so did not deprive them of the public interest defence. In addition, publishing the article would not damage the diplomatic interests of the United States or its attempts to secure Saudi co-operation in tracing terrorist funds as the US Treasury had given clearance to the article.
  1. It was further held that the standard of conduct expected of a journalist should be applied in a practical and flexible manner (Lord Scott, paragraph 140). This conduct included the duty to take such steps as are practicable to verify the truth of what is reported; and to provide an opportunity comment and / or an opportunity to have a response published by the newspaper (paragraph 138). In “reportage cases”, the publisher ought to make it clear that he is simply reporting what others have said although he himself does not believe the information to be true (Baroness Hale, paragraph 149).

 

 

CONCLUSION

The case of Jameel v Wall Street Journal Europe did not reject the traditional defence of qualified privilege in which the essential element is the duty and interest two-stage test.

 

The Reynolds public interest defence built on the traditional foundations of qualified privilege but carried the law forward in a way which gave much greater weight to the weight to the value of informed public debate of significant public issues (Lord Bingham, paragraph 28). It was a “different jurisprudential creature” from the traditional privilege from which it sprang (Lord Hoffman, paragraph 46).

 

This would be a promotion of a free and vigorous press to keep the public informed. The journalist’s task is to behave as a responsible journalist (Lord Scott, paragraph 134).

 

 

TREVOR JASON MARK PADASIAN ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it )

 
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