Jameel and others (Respondents) v. Wall Street Journal Europe Sprl (Appellants)

A trading corporation with a commercial reputation in England and Wales may recover general damages for libel without proving special damage where the publication tends to harm it in the conduct of its business. Article 10 does not require a different rule.

The public interest defence protects defamatory and untrue material where the publication concerns a matter of real public interest and the publisher acted responsibly. Public interest is assessed from the publication as a whole. Defamatory details must contribute to the story, but appropriate weight should be given to editorial judgment. Responsible journalism is a practical and flexible standard. The Reynolds factors are relevant considerations, not rigid hurdles, and a failure to obtain or await the claimant’s response is not invariably fatal.

The appellant published an article reporting that the Saudi Arabian authorities were monitoring bank accounts associated with named Saudi businesses at the request of United States authorities investigating terrorist finance. The respondents, a Saudi businessman and a company in his corporate group, were named. A jury found the article defamatory and awarded damages of £30,000 and £10,000 respectively.

Eady J rejected the company’s argument that general damages were recoverable only upon proof of special damage: [2003] EWHC 2945 (QB). He also rejected the newspaper’s defence of qualified privilege: [2004] EWHC 37 (QB). The Court of Appeal dismissed the newspaper’s appeal: [2005] EWCA Civ 74; [2005] QB 904.

The House considered whether a trading corporation could sue in libel without proving special damage and whether the article was protected by the public interest defence derived from Reynolds v Times Newspapers Ltd.

1. Disposition. The appeal was allowed unanimously and the Court of Appeal’s order was set aside. Lord Hoffmann, Lord Hope, Lord Scott and Baroness Hale held that the publication was protected by the Reynolds defence and that the action should be dismissed. Lord Bingham agreed that the lower courts had applied the defence too narrowly, but doubted whether the House should itself make the final finding of privilege without hearing the witnesses.

2. Corporate reputation. Per Lord Bingham, Lord Hope and Lord Scott, forming the majority on this issue, a trading corporation with a commercial reputation within the jurisdiction may recover general damages without pleading or proving special damage. It must show that the defamatory words tend to damage it in the conduct of its business. Corporate reputation has value independently of immediately provable financial loss, and requiring proof of such loss could deprive a corporation of an effective means of vindication. The rule was compatible with article 10 of the European Convention on Human Rights, which permits proportionate protection of reputation and leaves the state a margin of appreciation. Lord Bingham added that damages should remain strictly modest where no actual financial loss was shown. Lord Hoffmann and Baroness Hale preferred a requirement of actual or likely pecuniary damage.

3. The public interest defence. The House reaffirmed Reynolds v Times Newspapers Ltd [2001] 2 AC 127. A judge must first decide whether the publication, considered as a whole, concerns a matter of real public interest. The question is distinct from whether the material merely interests the public. A defamatory allegation must form a genuine part of the public-interest story. Appropriate allowance must, however, be made for responsible editorial judgment about the details needed to convey the story.

4. Responsible journalism is an objective but practical and flexible standard. Lord Nicholls’s considerations in Reynolds are pointers whose weight varies with the circumstances, rather than separate hurdles. The court should examine the reliability of the sources, verification, tone, urgency, editorial process and any opportunity afforded to the claimant to comment. Failure to obtain or await a response is a factor, sometimes a weighty one, but is not an inflexible bar. The assessment concerns the publisher’s conduct at the time; inability to prove the allegation’s truth at trial is neutral.

5. Application. The article addressed terrorist financing and international co-operation, matters of exceptional public importance. Naming prominent businesses materially strengthened the report that the investigation reached the centre of Saudi commercial life. The article was measured, unsensational and prepared by experienced journalists who undertook substantial verification. Evidence of confirmation from a United States Treasury source stood uncontradicted. Delaying publication was unlikely to produce material information because the respondents could not know whether covert monitoring was occurring. The known circumstances therefore established responsible journalism and the claims were dismissed.

1. House of Lords: Allowed the appeal from [2005] EWCA Civ 74, set aside the Court of Appeal’s order and, by a majority on final disposal, dismissed the action.
2. Court of Appeal: Dismissed the newspaper’s appeal and upheld the denial of the public interest defence and the ruling on corporate damages: [2005] EWCA Civ 74; [2005] QB 904.
3. High Court, Queen’s Bench Division: Eady J held that the corporate claimant could recover without proving special damage: [2003] EWHC 2945 (QB). Following trial, he rejected qualified privilege and entered judgment on the jury’s verdicts: [2004] EWHC 37 (QB).