Dow Jones & Co Inc v Jameel

Publication of words defamatory of an identifiable individual remains actionable without proof of actual reputational loss. The presumption of damage is compatible with Article 10 of the European Convention on Human Rights.

Where publication and reputational harm are minimal, the proportionate response may be to stay or strike out the proceedings as an abuse of process. The court must consider whether the claim serves a legitimate vindicatory purpose and whether its prospective benefit justifies the expense and use of court resources. A claimant suing upon limited English publication cannot rely upon vindication of a wider international reputation. A speculative possibility of obtaining an injunction does not justify disproportionate proceedings.

Dow Jones & Co Inc v Jameel concerned an online article linking a list of named Saudi donors with early financial support for Osama bin Laden and al Qaeda. The claimant alleged that readers would identify him as one of the persons named. Dow Jones did not justify the alleged imputations but relied on defences based upon responsible reporting.

The article was hosted in New Jersey. For the appeal, the parties proceeded on the assumption that only five subscribers accessed the linked list in England. Three were connected with the claimant, while the other two were said not to know him.

Eady J made four interlocutory rulings against Dow Jones. The appeal concerned the presumption of damage, identification, whether a real and substantial English tort had occurred, abuse of process and the value of a possible injunction.

The Court, in a single judgment delivered by Lord Phillips MR, allowed the appeal and stayed the proceedings.

1. English libel law presumes some damage when defamatory words concerning an identifiable individual are published. Before the Human Rights Act 1998, that presumption was in practice irrebuttable. Neither a reader's lack of previous knowledge of the claimant nor disbelief in the allegation necessarily prevents the tort from being committed.

2. The presumption remained compatible with Article 10 of the European Convention on Human Rights. It was a long-standing and generally practical rule based upon the objective tendency of a publication to injure reputation. Rare claims involving no or minimal actual harm could instead be controlled through jurisdictional objections, abuse-of-process principles or costs sanctions. The appeal against the striking out of Dow Jones's challenge to the presumption was therefore dismissed.

3. A common name alone may be insufficient to identify a claimant. The name must, however, be read in context. There was a real prospect that the claimant would be identified objectively from his name, nationality, wealth and the surrounding allegations. The identification appeal was dismissed.

4. An English claim arising from worldwide publication concerned only the separate publication or publications occurring in England. Vindication of the claimant in relation to the wider international publication could not justify pursuing the English claim. On the assumed facts, five English publications caused no more than minimal reputational harm and did not amount, individually or collectively, to a real and substantial tort.

5. The court's responsibility for proportionate use of judicial resources was not removed by the defendant's failure to challenge jurisdiction earlier. Section 6 of the Human Rights Act 1998 also required a proper balance between freedom of expression and protection of reputation. A lengthy and expensive trial of complex privilege defences, capable of producing only very modest damages and minimal vindication, was disproportionate and an abuse of process. Article 6 did not require a hearing where the alleged infringement was not real or substantial.

6. Insignificant publication may justify proceedings where there is a real threat of wider repetition and a useful injunction is realistically available. Here further publication was speculative, and any future report might raise different questions of privilege and harm. The possibility of an injunction did not justify continuation of the action.

• Court of Appeal (Civil Division): In Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75, the court allowed the appeal overall and stayed the proceedings as an abuse of process. It dismissed the challenges concerning the presumption of damage and identification.
• High Court, Queen's Bench Division: Eady J made four interlocutory rulings against Dow Jones in two judgments dated 6 July 2004. Those rulings included striking out challenges to the presumption of damage and the place of internet publication, and rejecting summary disposal on identification, substantial-tort and abuse-of-process grounds.