Jameel & Another v Wall Street Journal Europe (No.2) (CA)
Reference:  EWCA Civ 74;  QB 904;  2 WLR 1577;  EMLR 377;  4 All ER 356; The Times 14 Feb 2005; The Independent 9 Feb 2005
Court: Court of Appeal
Judge: Lord Phillips MR, Sedley and Parker LJJ
Date of judgment: 3 Feb 2005
Summary: Defamation - Libel – Reynolds privilege – Relevance of Bonnick v Morris - Presumption of damage – Presumption of falsity
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Justin Rushbrooke KC (Claimant)
Instructing Solicitors: Carter-Ruck for the Claimants; Finers Stephens Innocent for the Defendant
The Defendant published an article in the Wall Street Journal Europe to the effect that the Saudi Arabian monetary authorities were monitoring, at the US government’s request, certain bank accounts in connection with the actual or potential funding of terrorism. The Abdul Latif Jameel Group was named as being on the list of such accounts. The main company in the Group and its President (Mohammed Jameel) sued for libel. The Defendant pleaded Reynolds privilege and took issue with the Claimants’ meaning, which was at the ‘reasonable grounds to suspect’ level. The jury rejected much of the journalist’s account of his sources for the story and his attempt to verify it with the Claimants in advance of publication. They awarded damages of £30,000 to Mr Jameel and £10,000 to the company. Eady J <A
href=”https://www.5rb.com/5rb/casereports/detail.asp?case=174″ target=_parent>ruled that the plea of privilege failed. The Defendant appealed.
(1) Whether the judge’s ruling on Reynolds privilege was wrong; in particular, whether he had applied the wrong test, whether he had misdirected the jury regarding the presumption of falsity (as it applied to the facts), and whether he should have taken a verdict from the jury on meaning;
(2) Whether the presumption of damage that had applied in respect of the corporate claimant was contrary to Article 10 of the European Convention;
(3) Whether the Defendant should have permission to argue that the presumption of falsity as a matter of law was contrary to Article 10.
Dismissing the appeal;
(1) (semble) the judge had applied the correct test, and in any event reached the right result on the facts. He should not have directed the jury to proceed on the basis that the Jameels’ name was not on any list, since the presumption of falsity did not apply to factual issues relevant to Reynolds. However, the misdirection was not material, and even if it had been the defence would still have failed on the facts. Further, the judge was right not to have taken a verdict on meaning: the precise level of meaning could not affect the result, and Bonnick v Morris did not apply since no responsible journalist could have ignored the fact that the article was capable of bearing a defamatory meaning;
(2) The presumption of damage was not contrary to Article 10, since a requirement to prove special damage would leave many an injured corporation without a remedy;
(3) It was too late to take this point for the first time on appeal.
This much-anticipated judgment leaves the law pretty much undisturbed. The Court of Appeal has emphasised that under Reynolds responsible journalism is not enough: the publication must also be in the public interest, which is a stringent test. Secondly, the Court raised a tantalising question which will have to be resolved in the future: where a ‘reportage’-style Reynolds defence is run in respect of a report of an investigation, or (as here) of monitoring, what are the facts that the journalist should have to prove were fairly and accurately reported? Does the article have to be an accurate report of the fact of the investigation/monitoring, or merely of what the journalist was told by his sources? In other words, should the journalist in this case have been required to prove that the Jameels were in fact on a list of accounts being monitored, rather than merely that he honestly and reasonably believed that they were?