The Court of Appeal has introduced some useful visa restrictions on libel tourism
One story, two brothers, a newspaper and its online counterpart have this week yielded two Court of Appeal judgments. While one centred on the extension of the Reynolds defence of qualified privilege to a defamation action, the other centred on whether, in absence of widespread readership, such an action should be brought in the first place. Both the Wall Street Journal and Wall Street Journal Online carried articles containing reference to a list of people who had allegedly backed or could be linked to backing the Al Quaeda regime prior to the 9/11 atrocity. Both Mohammed Abdul Latif Jameel and his brother Yousef Abdul Latif Jameel felt implicated by these articles and brought defamation actions in respect of their publication.
The Wall Street Journal lost its appeal after the court found it had failed to establish the level of responsible journalism required as prerequisite to being able to advance Reynolds privilege as a defence. Meanwhile its online counterpart, owned and represented by Dow Jones, was able to secure a more successful outcome in the same court.
While the media may have cause for concern at the ever narrowing scope of Reynolds, they can find solace in the far-reaching and arguably landmark implications of the Court of Appeal’s ruling as to the scope of actions for online defamation.
Yousef Abdul Latif Jameel had sought to bring an action for defamation and secure a further injunction against Dow Jones in respect of an article that had been posted on Wall Street Journal Online. The article had been uploaded onto the online service in New Jersey from where it was accessible to subscribers of Wall Street Journal Online on a worldwide basis. The action was brought in England on the basis that there were several thousand subscribers in that jurisdiction who may, as a result of the article, have tended to think less of the claimant thereby giving rise to the cause of the defamation.
In considering its judgment the Court of Appeal made three notable observations that provide the media with food for thought in relation to such actions.
First, information made available or referenced via a hyperlink to another site or article could contribute to the context which made the originating article defamatory. So, by inserting a hyperlink to another article or piece of information you would, in effect, be incorporating the content of that which is hyperlinked into your story for the purposes of evaluating context in a libel action.
Second, when assessing the potential for an article to be defamatory of an identifiable individual, the media will not be able to prove that no damage has been caused to the individual simply by proving that those reading the article did not know that individual.
In other words, the concept of ‘special knowledge’ attached to defamation by innuendo seems to have been dispensed with in this judgment. Defamation by way of innuendo has its basis in the fact that those readers with ‘special knowledge’ or who actually know the claimant would understand an article to refer to, or be defamatory of them. What the Court of Appeal appears to be saying is that the potential of an article to be defamatory does not depend on those reading it knowing the individual to whom such article refers.
The third point arose in both cases and is central to the presumption under English law that proof of defamation is proof of damage to the reputation of the defamed. The court went to great lengths to consider this principle and whether it was rebuttable. Counsel for Dow Jones had argued that since the Human Rights Act became operational in 2000, the presumption of damage would be incompatible with the freedom of expression guarantees conferred by Article 10 of the European Convention.
The Court of Appeal decided to leave this long-standing and fundamental presumption in tact. In their judgment, the presumption of damage was not accompanied by a presumption of a large financial award. While damage may be presumed, its quantification may be as little as a penny or a pound.
However, and this is where the judgment takes the law a step forward, in deciding there was no conflict between the Convention and presumption, Lord Justice Phillips stated that “In such circumstances the appropriate remedy for the defendant may well be to challenge the claimant’s resort to English jurisdiction or to seek to strike out the action as an abuse of process”.
It is in this observation that the court has handed the media a significant lifeline. So those who may malign the further constraints put on Reynolds privilege should know this – if you can show that proceedings are not serving the legitimate purpose of protecting a claimant’s reputation, you can invoke the Convention right of freedom of expression to have such proceedings stuck out. So while the door to Reynolds privilege seems to be closing on the media, the Court of Appeal has opened another behind which lays a potent defence to transjurisdictional libel tourism.
While the presumption of damage where defamation has been proven remains irrebuttable, the presumption on the part of claimants that their claim will be entertained has now been subjected to a new and potent defence – namely, that their claim is an abuse of process. The Human Rights Act prescribes that public authorities have a duty to act in a manner compatible to the European Convention. It also provides under section 12 that regard be had to freedom of expression in actions brought against the media. What this judgment does is recognise that a balance needs to be struck. Restriction on freedom of expression has to be proportionate to the damage such expression may cause. As Lord Phillips stated: “Keeping a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant’s reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged”.
Dow Jones was able to ascertain that only 5 people had read or been able to follow the hyperlink to the potentially defamatory material. Three of those were from the ‘claimant’s camp’. So with a maximum of three people to tend to think less of Mr Jameel, the court was not convinced that allowing the action for defamation to proceed would have served any legitimate purpose. Libel tourists beware – where there is no, or limited audience, the courts are less likely to entertain your claim. So the fact that a potentially defamatory publication is available (via internet access or otherwise) in numerous jurisdictions does not of itself give rise to a claim.
Full judgments here:
Further comment here:
Comment on Galloway v Telegraph judgment: