Jameel (Yousef) v Dow Jones & Co. Inc.
Reference:  EWCA Civ 75;  QB 946;  2 WLR 1614;  EMLR 353; The Times 14 Feb 2005; The Independent 10 Feb 2005
Court: Court of Appeal
Judge: Lord Phillips MR, Sedley and Parker LJJ
Date of judgment: 3 Feb 2005
Summary: Defamation - libel – Internet publication - presumption of damage - identification of Claimant – no real and substantial tort/abuse of process
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Justin Rushbrooke QC (Claimant)
Instructing Solicitors: Carter-Ruck for the Claimant; Finers Stephens Innocent for the Defendant
The Defendant published an article in the online edition of the Wall Street Journal which contained a link to the so-called ‘Golden Chain’ document, a list of names on which the name ‘Yousif Jameel’ appeared. The Claimant obtained permission to serve libel proceedings on the Defendant out of the jurisdiction, relying on the fact that there were over 5,000 subscribers to the online edition in this jurisdiction. The Defendant made no jurisdiction application, but some 4 months after serving its Defence applied to strike out the claim on various grounds, relying on evidence to the effect that only 5 people had accessed the document in this jurisdiction. Eady J declined to strike out the claim, and acceded to an application by the Claimant to strike out various paragraphs of the Defence. The Defendant appealed.
(1) Whether the presumption of damage in English law was in practice irrebuttable, and whether it was contrary to Article 10 of the European Convention on Human Rights;
(2) Whether the Claimant had no real prospect of establishing that the document complained of would have been understood by readers in this jurisdiciton to refer to him;
(3) Whether a substantial tort had been committed in this jurisdiction and/or whether the action was an abuse of process.
Allowing the appeal in part and staying the proceedings:
(1) The presumption of damage was in practice irrebuttable but not incompatible with Article 10: the English law has been well served by a principle under which liability turns on the objective question of whether the publication is one which tends to injure the claimant’s reputation;
(2) The Claimant had a reasonable prospect of proving that the name ‘Yousif Jameel’ on the Golden Chain list did, in the context of the article, and applying an objective test, identify him;
(3) On the basis that the evidence as to the number of ‘hits’ here was correct, the claim would be stayed as an abuse of process, in the sense that since the damage caused was minimal, so would any vindication be minimal, and the costs of obtaining it disproportionate.
This is a bold decision, and appears to be the first case of an otherwise bona fide libel claim being stayed as an abuse of process, in circumstances where the publishers could have but chose not to argue forum non conveniens at the outset of the case. The Court made no order as to the costs of the proceedings up until the time when Dow Jones served its evidence of the limited number of ‘hits’ in this jurisdiction. The decision is also interesting for the Court’s endorsement of Eady J’s view (expressed in Multigroup Bulgaria  EMLR 737 at ) to the effect that an article defaming an identifiable individual would in principle be actionable even where no one reading it had prior knowledge of its victim: a newspaper could ‘simultaneously create and besmirch an individual’s reputation’.