Full case report
Mengi v Hermitage (No 2)
Reference  EWHC 3445 (QB)
Court High Court, Queen's Bench Division
Judge The Honourable Mr Justice Bean
Date of Judgment 30 Nov 2012
Libel – internet blog – justification – reply to attack qualified privilege
The Claimant is a prominent Tanzanian businessman who owns various media interests, including the Tanzanian ‘Guardian’ and ‘Nipashe’ newspapers, through his IPP group of companies. In 2004 the Defendant and her husband, Stewart Middleton, bought the lease to a farm in Tanzania from the Claimant’s brother, Benjamin Mengi. A dispute arose, in which Benjamin sought to have the lease assignment set aside. He mounted a campaign of harassment against Mr Middleton in particular, threatening to kill him, taking out vexatious court actions and involving the local police and courts in the issue of trumped up charges. Mr Middleton was as a result repeatedly arrested and then imprisoned. In 2008, the Defendant and Mr Middleton abandoned their farm and fled Tanzania in fear for their lives. In 2009 the Defendant set up a website which described the dispute. In relation to the Claimant, the Defendant alleged on her website that he had encouraged a campaign of “journalistic terrorism” in the form of deliberately inaccurate, abusive and defamatory attacks by his IPP media outlets against her and her husband, which campaign had facilitated Benjamin’s corruption of local officials and intimidation of the Defendant and Mr Middleton, and therefore assisted Benjamin in grabbing back the farm, and that the Claimant had “lied” during a meeting with the British High Commissioner to Tanzania in 2005, when he had made certain promises concerning the farm dispute and IPP’s coverage of it, which he had had no intention of keeping. The Defendant also made similar allegations in two emails about which the Claimant complained, which she sent to the Lutheran Church in Tanzania and to the African Media Initiative organisation.
Were the defences of justification and qualified privilege made out?
The allegations of IPP’s “journalistic terrorism”, and the Claimant’s support through it of his brother’s corrupt campaign to grab the farm were substantially true. The Defendant’s claims as to what the Claimant had promised at the meeting with the High Commissioner were not entirely true, but to the extent they were not justified at common law the Defendant succeeded under section 5 of the Defamation Act 1952, since the proved allegations that the Claimant had encouraged or knowingly permitted and approved of his newspapers’ defamatory campaign, and by doing so facilitated Benjamin’s campaign of corruption and intimidation, were far more serious than the allegations of making false promises. Further, the Defendant’s replies, in the form of her website blog and the emails, to the IPP media attacks on her and Mr Middleton were reasonable, proportionate and relevant, so that the defence of reply to attack qualified privilege applied. The protection was not lost because the Defendant had not published her response earlier; and it was not lost either because the Defendant’s response amounted to more than one “shot” (Heytesbury Holdings Pty Ltd v City of Subiaco and Costa  WASC 183 considered). Nor was the Defendant guilty of malice.
At the pre-trial review, notwithstanding that the Claimant’s evidence failed to identify any substantial readership of the blog historically, the court declined to strike out the action as a Jameel abuse on the footing that the words complained of remained posted on the Internet. The action therefore proceeded to a hotly contested full trial, at which the trial judge also noted that there was no evidence that the website postings, the latest of them having been made in 2010, had caused or are likely to cause serious harm to the Claimant’s reputation. The trial judge also pointed out, however, that had section 1 of the current Defamation Bill already been enacted, the position as to striking out might well have been different.
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