Jameel & Anor v Wall Street Journal Europe Sprl (No.2)

Reynolds qualified privilege requires both publication on a subject which it is in the public interest to publish and responsible journalism in the particular circumstances. Responsibility is judged from the position reasonably appearing to the publisher at the time, with appropriate regard to the gravity of the allegation, verification and an opportunity for the claimant to comment.

A trading corporation may sue for a publication apt to damage its business reputation without proving specific financial loss. That rule provides necessary protection and is compatible with freedom of expression under Article 10 of the European Convention on Human Rights. A foreign corporation with a trading reputation in the jurisdiction receives the same protection.

The publishers appealed from rulings of Eady J in a libel action concerning a newspaper report that Saudi authorities were monitoring bank accounts associated with named businesses at the request of United States authorities. A jury found that the article referred to and defamed an individual businessman and his company. It awarded £30,000 and £10,000 respectively.

The High Court rejected a defence of Reynolds qualified privilege and held that the corporate claimant could recover without proving specific financial loss. The appeal also raised applications concerning the common-law presumption that defamatory words are false. The central questions were whether the publication satisfied the public-interest and responsible-journalism requirements, whether the presumption of falsity had been misapplied, and whether corporate libel without proof of special damage was compatible with Convention rights.

1. The appeal was dismissed. Reynolds privilege requires more than responsible journalism alone. The subject matter must be such that publication is in the public interest, rather than merely of interest to the public. The publisher must also demonstrate responsible journalism, whose requirements vary with the circumstances and the gravity of the defamation.

2. The relevant perspective is the position as it should reasonably have appeared to those responsible for publication at the time. Truth is not normally decisive. The inquiry addresses whether publication was responsible given the risk that the defamatory implication might be false and having regard to the sources, their quality and the verification undertaken.

3. The subject of terrorism and Saudi cooperation was of public interest, and naming businesses made the story more compelling. The names were not essential, however. Adding them required particular care. The jury rejected evidence concerning four alleged confirming sources and found that the journalist had not made the claimed morning approach for comment. It also found that he refused a request for enough time to obtain the claimant's response. Those findings were fatal to responsible journalism. Any defence of neutral reportage, assuming it existed in English law, also failed because adequate verification and belief in the defamatory implications were absent.

4. The presumption that defamatory words are false applies to the defamatory sting. It should not be used when resolving facts relevant to Reynolds privilege, such as what sources told the journalist. The trial direction lacked the necessary distinction. Permission to appeal was nevertheless refused because the objection had not been raised when the judge could correct it, the jury probably decided the source questions from the witnesses and documents, and other findings independently defeated privilege.

5. The Bonnick principle could potentially accommodate a reasonable belief that an article was non-defamatory. It did not assist here because no reasonable journalist could have disregarded the article's obvious capacity to bear a defamatory meaning.

6. A trading corporation may sue for a libel calculated or apt to injure its business reputation without proving special damage. Requiring proof of specific financial loss would often deny vindication where loss was inherently difficult to prove. This protection is proportionate under Article 10 of the European Convention on Human Rights. The same rule applies to a foreign corporation which establishes a trading reputation within the jurisdiction.

• Court of Appeal (Civil Division): Dismissed the appeals concerning qualified privilege and presumed corporate damage, and refused permission to appeal concerning the presumption of falsity: [2005] EWCA Civ 74.
• High Court, Queen's Bench Division: Eady J rejected the challenge to presumed corporate damage in [2003] EWHC 2945 (QB) and rejected Reynolds qualified privilege, giving reasons in [2004] EWHC 37 (QB).