Al-Fagih v H.H. Saudi Research & Marketing (U.K.) Ltd

Qualified privilege may protect a newspaper’s neutral report of allegations exchanged during a political dispute, even though the newspaper has not verified their truth. The decisive question is whether the public had a proper interest in receiving the information and whether the publisher could reasonably regard itself as under a public duty to communicate it.

Verification remains an important consideration, particularly for serious allegations. It is not invariably required where both sides are reported fully, fairly and disinterestedly, the allegation is clearly attributed and the newspaper does not adopt it. The duty and corresponding public interest must exist when the publication occurs. Subsequent coverage cannot retrospectively remove the privilege.

The defendant newspaper reported a dispute between two prominent members of a Saudi Arabian dissident political organisation. Its article attributed to one participant an allegation that the other had spread malicious sexual gossip. The allegation was untrue, but the newspaper presented it as part of the continuing exchange and did not adopt it as true.

Smith J rejected the defence of qualified privilege, principally because the journalist had neither sought verification nor obtained the claimant’s response before publication. Following a later damages hearing, the claimant obtained judgment for £65,000. The defendant appealed against the ruling on privilege.

The central issue was whether, under the common-law approach stated in Reynolds v Times Newspapers Limited [2001] 2 AC 127, neutral and attributed reporting of the allegation was protected despite the absence of verification.

1. By a majority, allowing the appeal: Simon Brown and Latham LJJ held that the publication was protected by qualified privilege. The final damages judgment was set aside. The unresolved plea of malice remained to be determined.

2. Simon Brown LJ applied the duty-interest or right-to-know test from Reynolds v Times Newspapers Limited [2001] 2 AC 127. The court must ask what it was in the public interest for the public to know and what the publisher could properly regard itself as under a public duty to communicate. The publisher must reasonably believe that it is acting responsibly.

3. The newspaper was reporting a political dispute of genuine interest to its readership. The allegation was clearly attributed to a participant in that dispute and was not adopted by the newspaper. The fact that allegations of this character were being exchanged helped readers understand the nature of the dispute and the participants. The trial judge therefore gave insufficient weight to the public interest in the fact of the allegation having been made.

4. Verification is ordinarily relevant and may be essential. It is not an inflexible condition of privilege. Where both sides to a political dispute are fully, fairly and disinterestedly reported in their allegations and responses, the public may be informed without requiring the publisher first to verify the allegation or adopt one side’s account. The absence of verification did not defeat privilege on these facts.

5. The newspaper’s failure to repeat the claimant’s earlier general denial in the same article was not decisive. The dispute was receiving daily coverage, and a response could reasonably be expected in the next issue. Nor could later articles retrospectively remove privilege: the duty to publish and the corresponding public interest must exist at the time of publication.

6. The failure to verify could not by itself establish recklessness or malice consistently with the majority’s conclusion. The outstanding allegation that the newspaper’s true purpose was to damage the political organisation remained for future determination.

7. Mantell LJ dissented. He considered that Smith J had applied the correct Reynolds principles and had permissibly treated the allegation as a gratuitous personal attack with limited political relevance. In his view, the absence of verification, the failure to obtain an immediate response and the unnecessary haste of publication justified the rejection of privilege.

1. Court of Appeal (Civil Division): By a majority, allowed the defendant’s appeal, upheld the claim to qualified privilege and set aside the final judgment for damages. The claimant’s outstanding plea of malice remained to be determined.

2. Queen’s Bench Division: Smith J ruled on 28 July 2000 that the publication was not protected by qualified privilege. Following a further hearing, she entered final judgment for the claimant on 28 November 2000 for £65,000.