Article for Entertainment Law Review - The Importance of the Jameel Case

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There have in recent years been a spate of cases brought by Claimants sometimes with limited links to this country complaining that they have been linked with investigations into terrorism or gangsterism. In the Jameel case there were, however, significant links with this country. The Claimant, Abdul Latif Jameel Group owned amongst many things the quintessentially English Oxford based Hartwell Motors. The Defendant, WSJ (“WSJ”) sells 18,000 copies in this country. Jameel could never, by virtue of the First Amendment and the decision in the case of New York Times -v- Sullivan (1964) 37 6US 254 have sued in the United States where proof that the article was published with knowledge of its falsity is necessary. It was a different matter in this country despite the privilege that had been crafted by Lord Nicholls in Reynolds -v- Times Newspapers 2001 2AC 127. At the trial before Mr Justice Eady and a jury, Mohammed Jameel and his company had recovered £30,000 and £10,000 damages respectively.

The Wall Street Journal (“WSJ”) had described how the Saudi Arabian Monetary Authority was cooperating with the US Treasury and monitoring certain named accounts after the 9/11 attacks which the United States authorities claimed had been carried out by a number of individuals of Saudi origin assisted by Saudi finance. The award of damages was upheld by the Court of Appeal on narrower grounds than at trial because the paper had failed to give Jameel the 24 hours he had requested in order to comment.

The story was unquestionably of great public interest but it appeared to have fallen foul of the extreme difficulty of proving the existence of such investigations without facing a carefully crafted complaint that the article carried the implication that Jameel was either reasonably suspected of being guilty of wrongdoing or that there were reasonable grounds to investigate such wrongdoing. There had been many such cases with the growth of Russian and Eastern European gangsterism and of Jihadist terrorism. With the right lawyer a Claimant would swiftly pass Go as the papers could not justify any such meaning. Furthermore, such stories were usually based upon security or financial sources unwilling to be publicly identified. The public had a legitimate interest in knowing about such matters but it had become increasingly difficult for newspapers to report them.

Reynolds privilege which was meant to reflect the elasticity of the common law applying Article 10 of the European Convention of Human Rights with a nod towards the First Amendment of the United States Constitution. The reality had been that English libel judges had often proved surprisingly accommodating to Claimants who had little connection to the United Kingdom and/or questionable reputations.

Lord Nicholls’ test in Reynolds as he developed it in Bonnick -v- Morris 2003 1AC 300 was one of responsible journalism to be applied in a practical and flexible manner. However, the Reynolds defence virtually never succeeded because the ten pointers of responsible journalism were treated by the judges as hurdles to be surmounted. The judges applied a dollop of hindsight, finding something which they, as a responsible editor or journalist, would have done differently. The Reynolds defence spawned satellite litigation where, often for understandable reasons, the underlying facts could not be proved and much time and money had to be spent on analysing how the story was constructed. Anonymous sources tended to be viewed with suspicion and juries were given a complex list of factual issues to decide, sometimes with confusing directions as to the presumption of falsity which served to push them in the direction of disbelieving what the journalists said. The upshot was that it produced a lot of costly interlocutory skirmishing as in the case brought by Loutchansky against The Times with Defendants being stripped of their defence and either having an award of damages summarily assessed or having to settle.

As Lady Hale pointed out in Jameel, if ever there was a story which met the Reynolds test, this must be it. Lord Scott noted that this was a story involving very high public interest and Lord Hoffman spoke of a serious contribution in measured tone to a subject of very considerable importance. Lord Bingham felt that it was the sort of neutral investigative journalism that Reynolds privilege exists to protect. Yet until that point the WSJ had lost all down the line - albeit on slightly narrower grounds in the Court of Appeal. The article was unsensational in tone and written by a specialist journalist who had sought by rigorous fact-checking to verify its contents. His problem had been that he had to rely on anonymous sources such as US officials in Treasury and Intelligence circles and Saudi authorities “who were familiar with the issue”. Until the House of Lords decision, that almost invariably proved to be insufficient.

So what then are the important features of the altered landscape? Judges trying these matters will have to apply a new mindset focusing not on the presumption of falsity but on questions of genuine public interest and whether the matter has been responsibly reported. The old mindset was well-illustrated by the words of Lord Hobhouse in the Reynolds case that “no public interest is served by publishing or communicating misinformation”. Contrast with that the words of Lord Hoffman who displayed a better understanding of journalism’s realities when he observed that the existence of covert surveillance by highly secretive Saudi authorities would in the nature of things be impossible to prove by evidence in open court. This did not mean that what the paper had published was misinformation. The point about qualified privilege, is that it only becomes a live issue when the statement is defamatory and untrue - including untrue in the sense that matters could not be proved by admissible evidence to be true. This had tended to mean that either papers could not publish such stories or they could only refer to facts in the barest outline and not name anyone unless they had admissible evidence to prove what they had written. As Lord Scott noted, the publication of names does give verisimilitude to such stories. Another area where one can detect a change of approach is a greater recognition that one of the functions of the press is to publish things which governments may wish to remain secret. Mr Justice Eady felt that one point which militated against the application of the Reynolds defence in Jameel was that the government authorities had agreed that the existence of these investigations should be kept confidential. Lord Hoffman and Lord Scott poured scorn on this. It was not part of the duty of the press to cooperate with the wishes of the government.

One of the important features of the Jameel ruling is the analysis of the nature of the Reynolds privilege. Lord Bingham pointed out the origin is the requirement of reciprocal duty and interest between publisher and the recipient of the statement. Lord Scott highlights the real difficulties that this can give rise to when insisting on a meaningful reciprocity of duty and interest between the publisher of the newspaper and the reader who may be in New York, London or Rome. Lord Hoffman points out that Reynolds privilege is not really privilege in the old sense. It is the material which is privileged and not the occasion on which it is published. He felt it could more appropriately be called the Reynolds public interest defence. At the heart of it is the concept of responsible journalism coupled with the professional duty of publishing matters of legitimate interest which involves taking such steps as are practicable to verify the truth of what is reported and fairness to those whose names appear in the article. The ten Nicholls’ tests were pointers and not hurdles.

In practical terms, the importance of the Jameel case is that journalism is now recognised to be primarily a matter for journalists rather than second-guessing by High Court judges. Lord Bingham pointed out that weight should ordinarily be given to the professional judgment of an editor or journalist in the absence of some indication that it was made in an casual, cavalier, slipshod or careless manner. Lord Hoffman indicated that, allowance must be made for editorial judgment. If the article as a whole is in the public interest, opinions may reasonably differ over which details are needed to convey the general message. The fact that the judge with the advantage of leisure and hindsight might have made a different editorial decision should not destroy the defence. As Lord Nicolls stated in Bonnick -v- Morris, consideration has to be given to the thrust of the article, the inclusion of an inaccurate fact may not amount to irresponsible journalism. Lord Hope made it clear that one needed to look at the whole context of the article and that the Nicholls test did not mean that the public’s right to know was dependent on each piece of information in the article being assessed piece by piece.

Until the House of Lords decision, the way that the Reynolds case had been interpreted meant that it really was not likely to be successful except possibly where there was the pressure of the newsroom. It was unlikely to be available, for example, in relation to books, as there almost certainly would have been some further step that the author with greater time available could have taken to check the facts. Lord Hoffman, however, makes it clear that the defence is open to anyone who publishes material of public interest in any medium.

A critical issue is going to be how far public interest extends. Here the key factor is flexibility and looking at the article as a whole. The failure to report the Claimant’s explanation should not, for example, be elevated to a rigid rule of law, although it may be a weighty factor. The defence will normally require the journalist honestly and reasonably to believe that it was true but equally well, as Lord Hoffman points out, there may be reportage cases 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. The approach in future will be based on the threefold test set out by Lord Hoffman, firstly is the subject matter of the article of public interest and it is important there to consider the article as a whole and not to isolate the defamatory statement? If so, secondly, was the inclusion of the defamatory statement justifiable? This is likely to be largely a matter of editorial judgment. If so, thirdly, were the steps taken to gather and publish the information responsible and fair? As Lady Hale pointed out, the defence does not involve a free-for-all. There must be a real public interest and the publisher must have taken the care that a responsible publisher would take to verify the information published, Public interest she felt fell somewhere between the information being newsworthy which she felt was too subjective a test and the public needing to know which she felt was too limited.

Another significant factor of the judgment will be the extent to which the searing criticism of the directions given by the trial judge will have on the future approach at first instance in such cases. Lord Hoffman poured particular scorn on Mr Justice Eady’s view that the concept of responsible journalism was too vague and subjective. He felt that responsible journalism worked as a test and was not that different from concepts such as reasonable care. He believed that a body of law would evolve which would demonstrate what responsible journalism was. One has, unfortunately, heard that before, but there does seem real grounds for optimism that on this occasion that will happen. Lord Hoffman also ripped into the trial judge’s rigid application of the old law and the concept that one needed to look at whether the journalist concerned might be the subject of legitimate criticism if he withheld the false allegations - the sort of leading question to which the answer will almost always be no. He considered that it has been unrealistic to disallow the Reynolds defence because of the failure to delay the story for 24 hours. That he seemed to think fell within the realm of judicial hindsight and was really a matter for editorial judgment. As Lord Scott pointed out, Jameel was unlikely to have known whether he was the subject - with many others - of such investigations and that there was little upon which he could have commented. One also senses Lord Hoffman’s distaste for the presumption of falsity and for the direction to the jury that they should presume that a number of defamatory materials written by the journalist were false in the absence of evidence to justify them. This he felt had not surprisingly led the jury to reject the journalist’s account about his sources. Lord Hoffman seems to have been seeking to engineer a radically different approach to the application of the Reynolds defence. Defendants will start winning the interlocutory skirmishes.

The WSJ, however, were not successful on limiting the rights of companies to sue for libel. The decision in South Hetton Coal Company Limited -v- North Eastern News Association Limited 1894 1QB 133 - the antiquity of the authority was illustrated by its facts which concerned criticisms of the way that the Plaintiff colliery owner housed its workers - that a company did not have to prove that the defamatory statement had caused it actual damage - was upheld. The House of Lords made the point that the good name of the company was a thing of value as illustrated by the importance of advertising and sponsorship. Furthermore, proving such damage would be extremely difficult with endless arguments about the cause and effect of decreased sales. In Derbyshire County Council -v- Times Newspapers Limited 1993 AC 534 where the rule that a Council could sue for libel concerning its governing reputation had been reversed, it had been accepted that companies could sue without proof of special damage. Proof of special damage is, however, a requirement of malicious falsehood and ia change in the law to this effect had been recommended by the Faulks Committee on Defamation. In Jameel, Lord Hoffman was the sole advocate of such a change. It looks, however, as if the law is unlikely to be changed in that regard in the foreseeable future.

The real impact of the Jameel decision is that we now have a Reynolds defence that works. The significance of that cannot be underestimated. Whereas previously Claimants were almost bound to win because they were secure in the knowledge that the confidential sources would not identify themselves and that therefore the article would be presumed to be false with the likelihood that the court would find that the journalism had not accordingly been responsible, now the boot is on the other foot. A Claimant may know that what the paper has written is not correct but he will not know what steps the journalist will have taken to verify his story, Furthermore, he will know that instead of the judge finding fault with some step in the journalistic process, the court will now give far greater latitude to matters of editorial judgment. The days of judicial journalistic nitpicking seem to be over. If newspapers can combine this welcome change in the law with an adoption of the American style of fact-checking, which clearly impressed members of the House of Lords they will win their Reynolds defences far more often than they lose them.

David Hooper

Reynolds Porter Chamberlain

24 November 2006