The Reynolds defence and confidential sources

The Wall Street Journal reported in February 2002 (under the heading “Saudi officials monitor certain bank accounts: focus is on those with potential terrorist ties”) that the Saudi Arabian Monetary Authority was monitoring accounts, including those of the Jameel Group, for evidence that they had been used wittingly or unwittingly to channel funds to terrorists. Mr Jameel and his company sued for libel.

The Journal was unable to prove that there were even grounds for investigation of Mr Jameel and sought instead to rely on qualified privilege (the Reynolds defence), in other words, that it was in the public interest for the information to be published and that any journalist having the information, and having made appropriate checks, would have a duty to communicate it.

The judge explained recently [Mohammed Jameel and Abdul Jameel Company Limited v. The Wall Street Journal Europe SPRL] why he rejected the Journal’s qualified privilege defence, applying the criteria set out by Lord Nicholls in Reynolds as follows: Seriousness of the allegation: the allegation that the Jameel Group was linked to terrorism at some level was at the higher end of the scale of gravity, requiring higher responsibility from the journalist.

Nature of the information and extent to which the subject matter was of public concern: the subject of terrorism is of the plainest public interest, but where suspected culprits are named, the public will be more interested in factual information than speculation. Reassuring readers that the Saudi Government was actively cooperating in the fight against terrorism did not require the naming of individual Saudi businesses.

Status of the information: the US Government had apparently assured the Saudi Government that it would not reveal the names of any of the persons or entities whose accounts were being monitored, and there was no evidence that public interest required otherwise.

Urgency of the matter, and whether comment was sought from the subject: there was no compelling reason why this article had to be published on 6 February, 2002, rather than waiting for a few days to give Mr Jameel the opportunity to check on the accuracy of the monitoring allegations.

The status of the source of the information: the Journal said it relied on one lead and four sources in Saudi Arabia, which it declined (as it was entitled to) to identify. But the claimants put forward evidence to suggest that the sources were unlikely to have told the journalist what he said he was told and it was apparent from jury answers to questions posed by the judge that they disbelieved the Journal’s account. The judge accepted that the defence might be more elastic in the case of factual information gathered from oppressive societies or dangerous environments, but but noted that some of the sources here were said to be US officials in both Washington and Saudi Arabia.

The jury awarded Mr Jameel £30,000 and his company £10,000.

The case indicates the need for corroborating evidence where confidential sources are to be relied on and that it is almost always essential to give the subject of the story a chance to respond, particularly where there is no great urgency in publication.

The Journal has obtained permission to appeal, but this writer is not placing any money on its prospects.

Rupert Earle is a partner at Addleshaw Goddard

by Rupert Earle

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