Jameel v Wall Street Journal [2006] UKHL 44

A Saudi businessman sued the Wall Street Journal for libel. The House of Lords allowed the newspaper's appeal, establishing that the 'Reynolds defence' of responsible journalism should be applied more flexibly, focusing on whether the journalism was responsible, not a rigid checklist.

Facts

The Wall Street Journal Europe SPRL, the defendant, published an article in October 2002 entitled ‘Saudi Officials Monitor Certain Bank Accounts’. The article stated that, at the request of US law enforcement, the Saudi Arabian Monetary Authority was monitoring the bank accounts of a number of prominent businessmen, including those associated with the claimants’ company, the Abdul Latif Jameel Group. The stated purpose was to ensure the accounts were not being used, intentionally or not, to channel funds to terrorist organisations. Mohammed Jameel, the first claimant, was the president of the group. The claimants asserted that the allegations were false and sued for libel. The defendant admitted the allegations were defamatory and could not prove their truth, but relied on the defence of qualified privilege, specifically the ‘Reynolds defence’ of responsible journalism in the public interest.

Issues

The primary legal issue before the House of Lords was the correct application of the defence of qualified privilege as established in Reynolds v Times Newspapers Ltd [2001] 2 AC 127. Specifically, the court had to determine whether the Court of Appeal had erred in law by treating the ten indicative factors outlined by Lord Nicholls in Reynolds as a series of cumulative and mandatory hurdles for the publisher to overcome, rather than as a guide to assessing the overall standard of ‘responsible journalism’. A secondary issue concerned whether a trading corporation should be required to show proof of special damage or a likelihood of such damage to maintain a libel action, and whether the minimal publication of the article in England and Wales made the claim an abuse of process.

Judgment

The House of Lords unanimously allowed the appeal, finding that the newspaper was entitled to the protection of qualified privilege. The Law Lords held that the Court of Appeal had misapplied the Reynolds test by adopting an overly rigid, ‘checklist’ approach.

Lord Bingham’s Opinion

Lord Bingham clarified the essence of the Reynolds defence, emphasising a single, objective test of responsible conduct. He criticised the trial judge and the Court of Appeal for treating Lord Nicholls’ ten points as obligatory hurdles.

The core of the defence is, as I have called it, responsible journalism… The court should be slow to conclude that a publication was not in the public interest and, if it was, should be slow to conclude that the publisher should not be privileged. The question in any given case is whether the publisher behaved as a responsible journalist in publishing the material which is complained of… In my respectful opinion, the Court of Appeal fell into error by treating Lord Nicholls’ 10 points as a series of hurdles to be surmounted by the publisher, rather than as a check-list of matters to be taken into account, some of which may be more or less significant in a given case.

Lord Hoffmann’s Opinion

Lord Hoffmann, who had participated in the Reynolds decision, forcefully argued against the formulaic application of the ten points, which he described as being treated like a ‘statutory text’. He stressed that the overarching question was one of responsible journalism, with the public interest of the story being a paramount consideration.

In my opinion it is not a question of the journalist ticking off the ten points and being able to say that his article is therefore privileged. The question is whether he has behaved as a responsible journalist… The value of the ten points is that they are a checklist of the matters which a journalist should have in mind. They are not, and I am sure Lord Nicholls never intended them to be, a series of hoops through which the journalist must jump.

He concluded that the matter was clearly of public interest and the journalistic conduct was responsible, rendering the lengthy litigation futile.

Baroness Hale’s Opinion

Baroness Hale agreed on the central point regarding the Reynolds defence. She also provided significant commentary on the issue of libel actions brought by corporations. While confirming that corporations can sue for libel without proving financial loss, she questioned the fairness of this and floated the idea of a new threshold requirement for all defamation claims.

This suggests that the ‘real and substantial tort’ test which I have suggested for companies may in due course become an element in the tort of defamation, for all plaintiffs, whether individual or corporate. A libel action is a blunt instrument for protecting a reputation.

Implications

The decision in Jameel is a landmark in the law of defamation and press freedom. It significantly liberalised the defence of qualified privilege for journalists by moving away from a rigid, technical test towards a more holistic and practical assessment of ‘responsible journalism’. The ruling established that the public interest in the subject matter is the primary consideration, and the journalist’s conduct should be judged in that context. The judgment gave greater protection to investigative journalism on matters of public concern. Furthermore, Baroness Hale’s observations presaged the ‘serious harm’ test later introduced by section 1 of the Defamation Act 2013, which requires a claimant to show that a statement has caused or is likely to cause serious harm to their reputation.

Verdict: The appeal by the Wall Street Journal Europe was allowed, and judgment was entered for the defendant.

Source: Jameel v Wall Street Journal [2006] UKHL 44