Abusing the internet

The Wall St Journal appealed against the
decision of Mr Justie Eady in rejecting its qualified privilege defence
in an action brought against it by Mr Jameel over allegations of
support for al-Qaeda. In particular, the Wall St Journal sought to
persuade the Court of Appeal that the judge had misdirected the jury as
to the application of the presumption of falsity to the defence of
qualified privilege, that he had applied the wrong test, and that the
presumption that the Wall St Journal had suffered damage was
incompatible with Article 10 of the European Convention on Human Rights.

The
Court of Appeal’s rulings in the two Jameel cases have brought a little
comfort to defendants sued on the back of a few internet hits. The
cases were part of the Golden Chain libel actions where the media have
unwisely named individuals and companies allegedly investigated for
possible links with al-Qaeda. al-Qaeda and conditional fees seem to
have kept the wolf away from claimant lawyers’ doors.

Jameel’s
case against Dow Jones’ publication Wall Street Journal On-Line, based
in New Jersey, was stayed on the basis that it was an abuse of process.
The courts will now look at the extent of publication and weigh it
against the likely damages and cost of a lengthy trial.

In what
seemed a departure from the Australian case, Gutnick v Dow Jones , a
handful of internet hits will not launch a libel action. The courts
will provide a level playing field and referee, whatever game the
parties choose to play.

In Jameel, the game would not have been
worth the candle nor the wick. There was support for Lord Hoffman’s
dissenting judgment in Berezovsky v Forbes that this country should not
become an international libel policeman. Jameel appeared to have a
viable claim as there were 6,000 UK subscribers to Wall Street Journal
On-Line in the UK. However, the defamatory material could only be
accessed through a hyperlink and only five people had done so, three of
whom were in the claimant’s camp–his lawyer and business associates.
The court in a robust judgment held that Jameel could not establish
that a real and substantial civil wrong had been committed in the UK.
The fact that the other two hyperlinkers had not heard of him would
not, of itself, been conclusive but it didn’t help. Attempts to remove
the presumption that libel tends to cause damage were rejected by the
court. It will now look rigorously at whether the remedy sought is
proportional to the likely damages and legal costs and the extent of
publication to see if it is an abuse of the process. The 1849 case,
Duke of Brunswick -v- Harmer would be held to be an abuse of process.
The Duke sent his butler to purchase a book published 17 years
previously to manufacture a new limitation period. A measure of sanity
is creeping into the law of libel.

The court upheld the £30,000
awarded to Jameel and the £10,000 to his company against Wall Street
Journal Europe. It underlined how difficult the Reynolds defence is to
establish – a process complicated by the fact that the jury did not
accept all the paper’s evidence regarding their pre-publication
research.

The Court of Appeal ruled that the Human Rights Act did not affect fundamental presumptions of the falsity and damage in libel.

It
observed that the phrase “responsible journalism” was insufficiently
precise. The requirements of responsible journalism will vary according
to the circumstances including the gravity of the allegation and the
urgency to publish. The subject-matter must be such that it is in the
public interest that it is published. Where the defendants do not
justify what they wrote, they may have difficulties in establishing
Reynolds privilege. They may have to produce evidence of why the
journalist believed that what he wrote was true and, where appropriate,
why he reasonably failed to appreciate that the article was defamatory.
The fact that the court felt that this story could have been published
without naming names, simply referring to unnamed Saudi business
interests underscores the tensions between the media and the courts.

Unfortunately,
the court chose not to rule upon whether the trial judge, Mr Justice
Eady, had applied too strict a test – namely whether the paper had an
obligation to publish the article with the public needing to have that
information in the sense that it would be wrong to deprive them of it.
Some felt that this raised the Reynolds defence a notch or two.

The
Court of Appeal did nothing in Wall Street Journal Europe to make the
Reynolds defence more effective. Instead the litigation underlined the
enormous expense involved in establishing its many ingredients.

David Hooper is a media partner at Reynolds Porter Chamberlain

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