Jameel & Anor v The Wall Street Journal Europe Sprl

A corporate claimant need not prove actual financial loss to maintain a libel action or obtain damages. The law may presume damage sufficient to establish a cause of action, while the amount awarded can reflect the absence of measurable loss. Vindication remains a legitimate purpose of damages for a corporation, although compensation for hurt feelings or distress has no application. Article 10 does not require a foreign corporation with a recognised cause of action to prove special damage merely because it is foreign. The relevant balance is between freedom of expression and restrictions necessary to protect reputation, including protection against serious and unjustified falsehoods.

The defendant challenged the standing of the second claimant, a Saudi company, before trial. It argued that the company did not trade, lacked a reputation in England and Wales, and, alternatively, that Article 10 of the Convention required a foreign corporation to prove actual financial loss before recovering for libel.

The factual issues concerning the company’s trading activities and reputation required evidence and could not be resolved preliminarily. The court therefore considered only whether the proposed legal restriction on corporate libel claims was required by the Convention.

1. Preliminary issue rejected. The second claimant was permitted to remain in the proceedings, at least for the time being. The factual challenges to its trading status and reputation could be considered after evidence had been heard.
2. A corporation differs from an individual because it cannot experience anxiety, distress or hurt feelings. That distinction does not remove the other purposes of general damages. A corporate claimant may recover for injury to its business reputation and may receive an award serving the purpose of vindication.
3. Actual financial loss is not a prerequisite to a corporate libel claim. The absence of special damage may make assessment more difficult and may reduce the award, but it does not prevent an award of general or nominal damages. The court may take account of the likelihood or risk of financial harm arising from the nature and publication of the libel.
4. Article 10 does not require a foreign corporation with a recognised cause of action in defamation to prove actual financial loss. A presumption of damage is not equivalent to a presumption of substantial loss, so the availability of a remedy is not inherently disproportionate.
5. The court must consider necessity and proportionality when reconciling freedom of expression with protection of reputation. There was no pressing social need to discriminate between foreign and United Kingdom corporations by depriving the former of a remedy capable of vindicating reputation. The public interest in avoiding the dissemination of serious and unjustified falsehoods supported retaining the remedy.

First instance decision. No appellate history is stated in the judgment.