Abdul Latif Jameel Company Ltd. v The Wall Street Journal Europe Sprl

Qualified privilege for publication of defamatory allegations to the public depends on the objective common-law duty-interest test. The question is whether, at the time of publication, there was a social or moral duty to communicate the particular allegations, having regard to all the circumstances. “Responsible journalism” is not a substitute test, although journalistic conduct and Lord Nicholls’ non-exhaustive criteria are relevant. Public interest in a subject, such as terrorism, does not establish a public interest in identifying particular persons. Gravity increases the need for accuracy, verification and a meaningful opportunity to comment. Urgency must be assessed objectively and distinguished from a newspaper’s desire for a scoop. In cases of genuine residual doubt, the issue should be resolved for the defendant.

The claim concerned a front-page article in the Wall Street Journal Europe which identified the Jameel group as among those whose accounts were allegedly being monitored because of potential terrorist ties. A jury found the words defamatory and rejected key evidence concerning the defendant’s sources and the opportunity given to the claimants to comment. The judge was required to determine whether the resulting factual findings established qualified privilege under the Reynolds principles.

1. The defence of qualified privilege was rejected. The jury’s answers were binding, subject only to implications necessarily arising from them. They left the defendant’s case on sources substantially unsupported and showed that the claimants had not been given a meaningful opportunity to comment.

2. The governing question was whether the defendant had a social or moral duty to publish the particular defamatory allegations to the general public at the material time. The test was objective and had to be applied by the court. “Responsible journalism” and professional skill were relevant considerations, but did not replace the underlying duty-interest test.

3. Lord Nicholls’ ten criteria in Reynolds v Times Newspapers Ltd [2001] 2 A.C. 127 were valuable, non-exhaustive guidelines. They had to be considered together, with the ultimate question kept in view. The public interest in terrorism did not establish a public interest in publishing the specific allegations against the claimants.

4. The gravity of the allegations increased the responsibility to verify them, obtain comment and ensure accuracy. The public interest required factual information rather than speculation or guesswork. Urgency was also objective. The desire to publish first did not justify refusing a reasonable request for time to investigate and respond.

5. The international dimension had to be taken into account, but the issue remained whether publication in England and Wales was justified under English law. The alleged confidentiality of the monitoring operation and the risk that publicity would undermine it required especially close scrutiny. No sufficient public interest in naming the claimants was established.

6. The discussion of Bonnick v Morris [2003] 1 A.C. 300 did not alter the result. Where words are genuinely ambiguous, other possible meanings may be relevant to assessing privilege, but the judge could not substitute a different meaning for the jury’s finding. The unusual circumstances in Bonnick were absent.

The defence of qualified privilege therefore failed.