THE WALL STREET JOURNAL EUROPE SPRL v. THE UNITED KINGDOM
Inadmissible
Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza
The first applicant, Wall Street Journal Europe Sprl, is a corporation registered under Belgian law which publishes a daily newspaper in Europe, the “Wall Street Journal Europe”, which reports on developments in international business, politics and diplomacy. The second applicant, Frederick Kempe, is a United States national who was the editor and associate publisher of the newspaper. He was born in 1954 and lives in Belgium. The third applicant, James Dorsey, is a German national who was born in 1951, is a journalist and lives in the Netherlands. The fourth applicant, Glenn Simpson, is a United States national who was born in 1964, is a journalist and lives in Belgium. The fifth applicant, Raju Narisetti, is a United States national who was born in 1966, is the Managing Director of the newspaper and lives in Belgium. They were represented before the Court by Mr M. Stephens, a lawyer practising in London. On 6 February 2002 the Wall Street Journal Europe (“WSJE”) published on its front page an article written by the third applicant and headed “Saudi officials monitor certain bank accounts” with a smaller sub-heading stating “focus is on those with potential terrorist ties”. The article reported, contrary to various other publications, that the Saudi Arabian Monetary Authority was in fact monitoring bank accounts associated with some prominent businessmen so as to prevent the funnelling of funds to terrorist organisations. It also stated that the monitoring had been requested by United States law enforcement agencies. The article attributed the information to United States officials and Saudis. A number of companies and individuals were named, including the Jameel Group of Companies. The applicants submitted that the story had emerged through investigative journalism in Saudi Arabia, where access to information was particularly difficult for European newspapers. The third applicant was one of the very few Arabic-speaking Western reporters who had been able to obtain a visa for Saudi Arabia after the attacks in New York of 11 September 2001. The third applicant’s sources had been promised anonymity given that five of them were resident in Saudi Arabia, where the government would carry out brutal reprisals were they identified. The story was approved by senior staff in Washington, who had sought confirmation of it from their sources in the United States Treasury Department. Mr Jameel, who was head of a group of companies, and one of the corporate entities forming part of the Jameel Group, sued the WSJE for libel. The WSJE denied that the article was defamatory. Given the importance of maintaining the confidentiality of its sources and the fact that evidence in support of the publication was inaccessible in Saudi Arabia, the WSJE did not seek to rely on the defence of justification in the proceedings. On 7 October 2003 Eady J made two rulings as to the meaning of the words complained of and as to the admissibility and relevance of certain hearsay evidence. He concluded that the words complained of were not capable of bearing a lesser defamatory meaning than that of “reasonable grounds to suspect” the claimants of having terrorist ties and of funnelling funds to terrorist organisations. Moreover, he held that the claimants could submit evidence aiming to prove that the central allegation of the article was wrong. In an interlocutory appeal the Court of Appeal accepted on 26 November 2003 that the judge was correct in deciding that the evidence was properly adducible with regard to evaluating the plea of qualified privilege: undermining the correctness of the central allegation would make it more difficult for the jury to believe the journalists when they claimed that they were nevertheless clearly given this information. However, the Court of Appeal accepted that the article was capable of having lesser defamatory meanings or a non-defamatory meaning. The action was tried before a jury between 1 and 19 December 2003. Counsel for each of the parties invited the judge to ask the jury what meaning the words in the article bore. The judge declined to do so. In his direction to the jury, he stated: “First, if you decide that it is defamatory of one or both claimants, we must all proceed on the basis that any such defamatory allegation is untrue. ... The defendants would be entitled to prove the truth of the allegation they have made ...They have chosen not to do that in this case and, therefore, the claimants are entitled to that presumption of innocence. It is not for them to prove anything ... If it does reflect in any way in a defamatory sense upon either of them, and ... the article does in some way link one or other or both of them to the funding of terrorism, then we accept, as an absolute fundamental assumption in this case, that such allegation is untrue.” On 18 December 2003 the jury decided that the article was defamatory and that, subject to the judge’s decision on qualified privilege, the appropriate sums to be awarded by way of damages were 30,000 United Kingdom pounds sterling (GBP) to Mr Jameel and GBP 10,000 to his company. They found that the newspaper had proved that the author had received the information he claimed from a Saudi businessman, but had not proved that he had received confirmation from his other four sources. The jury further found that the third applicant had telephoned the office of the Jameel Group on the evening of 5 February 2002 and had spoken to a representative of the Group who asked for publication to be postponed for 24 hours so that Mr. Jameel, who was in Japan for business, could be contacted but that the third applicant had declined the request. On 19 December 2003 Eady J. rejected the applicants’ plea of qualified privilege. He gave his reasons for that ruling on 20 January 2004. He noted that “(t)here is a presumption that defamatory words are false, unless and until the relevant defendant proves them to be true. Here, because there is no plea of justification, the presumption will prevail.” As to the meaning of the impugned words, the judge had regard to the ruling in the interlocutory proceedings as to the possible range of meanings, the jury’s finding that the words were defamatory and the sums which the jury had specified as appropriate damages. He concluded that the words were defamatory in some sense and that at worst they suggested that there were “reasonable grounds to suspect” involvement in the funnelling of money to terrorists. The judge found that the author could not have written the article in reliance on the claims of the Saudi businessman alone. Further, there was no urgency that required the publication to be made before Mr Jameel had been given a reasonable opportunity to comment on the matters alleged and it would have been sufficient not to name him and his company since it would be contrary to the public interest to publish the names of those being monitored. On 3 February 2005 the Court of Appeal upheld the trial judge’s decision but on a more limited ground: that the newspaper had failed to delay publication of the claimants’ names to give them time to comment. The renewed application for leave to appeal concerning the presumption of falsity was rejected. While a defendant who wished to rely on the defence of qualified privilege under Reynolds v. Times Newspapers Ltd ([2001] 2 AC 127), might have to prove that it was reasonable for him to believe that a defamatory article was true, the applicants had implicitly accepted that if the article proved to have a defamatory meaning, they had no belief that it was true. As to the contention that the common law presumption of falsity infringed Articles 6 and 10 of the Convention, the court noted that it was too late for the applicants to raise this point as the parties had conducted the case on the premise that any defamatory meaning that the article bore was presumed to be untrue unless the publishers pleaded and proved justification. Accordingly, permission to advance this ground of appeal was also refused. With regard to the application of the presumption of falsity in the judge’s direction to the jury, the court noted the following: “we do not consider that it was appropriate for the jury to apply the presumption of falsity when considering the issues of fact that were relevant to Reynolds privilege. When considering whether Reynolds privilege attaches to the publication of a potentially defamatory article it is necessary to decide whether the publishers acted as ‘responsible journalists’ in publishing the article. This question has to be addressed having regard to the position as it should have appeared to those responsible for the publication at the time of publication. Whether or not the article was true is not normally relevant to this question- see GKR Karate v. Yorkshire Post [2001]. What has to be considered is whether it was responsible to publish the article having regard to the risk that the defamatory imputation in the article might prove to be untrue ... It does not seem to us right that the jury should apply a presumption that the article was false”. However, counsel for the applicants had not objected to the judge’s direction to the jury and had failed to raise this issue at the trial. In any event, the trial judge found the publishers’ conduct wanting in respect of each of the points of guidance set out in Reynolds v. Times Newspapers Ltd (cited above), and concluded that it was not in the public interest to publish the names of those subjected to monitoring and that the author was at fault in not permitting the claimants to comment. Accordingly, leave to appeal on this ground was also refused. Lastly, as to the judge’s failure to obtain from the jury an indication on the meaning they attached to the article, it was noted that: “The only issue is whether he should have required the jury to define precisely the gravity of the defamatory meaning of the article. It seems to us that the choice was between “reasonable grounds to suspect” and “grounds for investigating”. The difference between the two can be a narrow one. Had the issue of Reynolds been likely to turn on whether the words bore the more or the less serious meaning, it might have been necessary to invite the jury to choose between the two. But the judge plainly did not consider that the precise nature of the defamatory sting was capable of affecting the outcome. We share that view.” On 4 May 2005 leave to appeal to the House of Lords was granted in respect of the scope of the Reynolds defence of qualified privilege and the presumption of damage which allowed recovery of damages by the plaintiff corporation without proof of specific losses. Leave to appeal on the jury reasons issue was refused. On 11 October 2006 the appeal was unanimously allowed by the House of Lords on the scope of the Reynolds privilege and the claimant’s action was dismissed (Lord Bingham, Lord Hoffmann, Lord Hope, Lord Scott and Baroness Hale). The principal issue for determination by the House of Lords was whether the newspaper had been entitled to the defence of publication in the public interest established in Reynolds v. Times Newspapers (cited above). Lord Bingham of Cornhill noted that a publisher is protected by qualified privilege if he has taken such steps as a responsible journalist would take to try and ensure that what was published was accurate and fit for publication. He found that the Court of Appeal’s ruling “subverts the liberalising intention of the Reynolds decision.” The subject matter of the article was of great public interest, written by an experienced specialist reporter and approved by senior staff who themselves sought to verify its contents. The article was unsensational in tone and factual in content. The claimants’ response was sought and the paper’s inability to obtain a comment recorded. It was very unlikely that a comment would have been revealing. Overall, he concluded that “it might be thought that this was the sort of neutral, investigative journalism which Reynolds privilege exists to protect.” Lord Hoffmann also considered that the trial judge and the Court of Appeal had given the Reynolds defence “too narrow a scope”. He observed that it was the material which was privileged and not the occasion on which it was published while the burden was upon the defendant to prove that the conditions under which the material was privileged were satisfied. The trial judge had misdirected the jury when he requested them to find whether the author’s sources had indeed confirmed the reported facts bearing in mind that the reported facts had been known to be untrue. He noted that: “The fact that the defamatory statement is not established at the trial to have been true is not relevant to the Reynolds defence. It is a neutral circumstance. The elements of that defence are the public interest of the material and the conduct of the journalists at the time. In most cases the Reynolds defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true but there are cases (‘reportage’) in which the public interest lies simply in the fact that the statement was made, when it may be clear that the publisher does not subscribe to any belief in its truth. In either case, the defence is not affected by the newspaper’s inability to prove the truth of the statement at the trial.” Applying the criteria set out in Lord Nicholls’ speech in Reynolds, he concluded that the article “was a serious contribution in measured tone to a subject of very considerable importance”, the inclusion of the defamatory statements – the names of large and respectable Saudi businesses – was an important part of the story showing that the US Treasury’s request extended to the heartland of the Saudi business world, and the applicants had behaved “fairly and responsibly in gathering and publishing the information” in compliance with the “responsible journalism” test. As to the applicants’ refusal to delay publication Lord Hoffmann noted that the delay would not have made a difference to the article: in the circumstances Mr Jameel would have been asked whether he knew of any reason why anyone would want to monitor his account and the answer would most likely have been in the negative. Failure to wait was not enough to deprive the newspaper of the defence that they were reporting on a matter of public interest. Hence, there was no basis for rejecting the newspaper’s Reynolds defence. Baroness Hale of Richmond concluded that “if the public interest defence does not succeed on the known facts of this case, it is hard to see it ever succeeding”.