Jameel & Anor v The Wall Street Journal Europe SprL

When a judge delimits the meanings which allegedly defamatory words may bear, the judge may exclude a meaning only if no reasonable reader could adopt it and a jury would be perverse to do so. The permissible range should be approached generously, especially where the imputation is implied.

Although truth or falsity is ordinarily irrelevant to Reynolds qualified privilege, evidence showing falsity may be admitted for the distinct purpose of testing whether journalists received the information which they claim confidential sources supplied. The evidence does not become admissible merely to reassess, with hindsight, the apparent reliability of those sources.

The respondents brought a libel claim concerning an article which reported that Saudi authorities were monitoring bank accounts associated with named businesses, including the respondents’ group, because of potential terrorist ties. They alleged that the article meant that they were reasonably suspected of having terrorist ties and funnelling funds to terrorist organisations. The publisher relied on qualified privilege but did not plead justification.

At a pre-trial review, Eady J ruled that the article could not bear a defamatory meaning less serious than reasonable grounds for suspicion. He also admitted hearsay statements from the Saudi Arabian Monetary Authority and Saudi banks. The publisher appealed both rulings. The questions were whether the jury could consider a lesser meaning based on investigation or monitoring, and whether evidence tending to disprove the article could be used when assessing qualified privilege.

1. The appeal was allowed on meaning and dismissed on admissibility. Simon Brown LJ delivered the judgment, with which Mummery and Mance LJJ agreed.

2. A ruling delimiting meaning is a ruling of law that no reasonable reader could understand the words outside the specified range and that a jury adopting another meaning would be perverse. Since meaning is ordinarily for the jury, exclusion requires a high threshold. The judge should approach the possible range generously, especially where the defamatory imputation arises by implication. An appellate court may intervene where the first-instance judge has unnecessarily restricted that range.

3. The article was capable of bearing a meaning less serious than reasonable grounds to suspect misconduct. A jury could conclude that it asserted only that the respondents were being investigated and monitored so that they would not inadvertently enable terrorists to benefit. Uncertainty about the misconduct supposedly underlying the monitoring made the boundary between reasonable suspicion and grounds for investigation especially important. Eady J therefore erred by withdrawing the lesser meaning from the jury.

4. The general rule derived from GKR Karate was that the truth of a publication is irrelevant to Reynolds qualified privilege. Privilege is assessed from the circumstances at publication. Evidence may not be used retrospectively to show that confidential sources were less reliable than they objectively appeared at that time.

5. That rule did not prevent admission of the Saudi statements for a different purpose. If the respondents could establish that no monitoring existed, the jury might doubt whether the journalists were given the information which they claimed their anonymous sources had supplied. The evidence could therefore test the journalists’ accounts of their conversations without using hindsight to reassess source reliability. The difference from GKR Karate was material because the communication from the identified source in that case was undisputed.

6. Once properly admitted on qualified privilege, the evidence could be used on every issue for which it was relevant and probative. Whether it actually established falsity, and its appropriate weight, remained matters for the trial judge and jury.

1. Court of Appeal (Civil Division): By [2003] EWCA Civ 1694, unanimously allowed the publisher’s appeal against the ruling on meaning but dismissed its appeal against the admission of the hearsay evidence.
2. High Court, Queen’s Bench Division: Eady J ruled on 7 October 2003 that the article could not bear a defamatory meaning below reasonable grounds for suspicion and dismissed the publisher’s application to exclude the respondents’ hearsay evidence.