Full case report

Mir Shakil-Ur-Rahman v ARY Network Limited & Fayaz Ghafoor

Reference [2015] EWHC 2917 (QB)
Court High Court, Queen’s Bench Division

Judge Haddon-Cave J

Date of Judgment 27 Nov 2015


Summary

Defamation – Trial of preliminary issues – Meaning – Fact or opinion – Chase levels – TV broadcasts – Foreign language (Urdu)


Facts

The Claimant, a prominent media mogul in Pakistan, complained that 24 episodes of “Khara Sach”, a Pakistan news and current affairs TV programme in Urdu, broadcast in the UK through Sky and Virgin Media, and an ARY News item broadcast the same way, portrayed him as, among other things, a traitor to Pakistan, consorting with Pakistan’s enemies, doing their bidding and broadcasting subversive and misleading TV programmes which undermined Pakistan. He also brought a claim for harassment.

The Court directed the trial of preliminary issues including the meaning of the words complained of and whether, in each case, they consisted of assertion of fact or the expression of opinion. Literal translations of the programmes from Urdu into English were agreed between the parties.


Issue

What was the meaning of each programme; and did it consist of the assertion of fact or the expression of opinion?


Held

In the specific context of words spoken in a television programme, it was important to pay particular regard to the guidance given by Sir Thomas Bingham in Skuse v Granada Television Ltd [1996] EMLR 278. The overall subjective impression gleaned from a television programme might be relevant to interpretation, see Bond v BBC [2009] EWHC 539 (QB).

Here, the task with which the Court was faced was substantial and unusual and had to be approached with particular care. Because the programmes were entirely in Urdu, the Court was reliant on the translated transcripts of the broadcasts. The Judge explained that he first played the DVD of the broadcasts with the transcripts in hand, watching enough to get a flavour of the tone and structure of each programme and the style and approach of the presenter and his various guests.
 Secondly, the Judge read the full English translations of the entire transcripts of each broadcast and formed his own impression of the meaning of the particular words complained of in each broadcast. Thirdly, the Judge considered counsels’ written and oral submissions in relation to each broadcast.
 Then he replayed the DVD with the transcript and his notes to hand in order to confirm or adjust the impression he had formed as to meaning in relation to each broadcast. He recorded that he had considered each programme separately and had not aggregated meaning by looking across several episodes.

In the main, the meanings contended for by the Claimant were borne out: the recurrent theme of many of the broadcasts was that the Claimant is a traitor to Pakistan. Taking them programme by programme, some were purely factual, while the balance were a mix of factual assertion and comment, the latter provided principally in the form of the epithets “disloyally” and “traitorously”. The Judge also indicated to which Chase level each meaning belonged.


Comment

The judgment contains a useful and lengthy exposition of the numerous authorities relevant to determining the meaning of words complained of in a libel action.

The Judge observed that the scale of his task was considerable, with 25 broadcasts to consider and over 12,000 words complained of. His statement of his methodology in arriving at the meaning that a hypothetical reasonable viewer of each programme would have taken from it is notable, since until by section 11 of the Defamation Act 2013 the right to jury trial in defamation was removed, it was the jury not the Judge who decided what meaning in the eyes of a reasonable viewer (or reader) the words complained of carried.

The jury was never required to explain its method or reasoning. Now, on each occasion that a Judge decides on meaning in a defamation action, he or she may well be tempted to explain quite explicitly how he or she has gone about the exercise, to emphasise that the meaning arrived at is indeed that of the hypothetical reasonable viewer or reader.


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Instructing Solicitors

Carter-Ruck for the Claimant; Gresham Legal for the Defendants