Jameel & Ors v. Wall Street Journal Europe Sprl

The House of Lords considered (1) whether a trading company with a commercial reputation in England and Wales may recover general damages for libel without pleading or proving special damage and (2) the scope and application of the Reynolds public interest defence (often called Reynolds privilege). The majority reaffirmed the established domestic rule that a trading corporation with a trading reputation may recover general (non‑special) damages where defamatory matter has a tendency to damage it in the way of its business. On Reynolds privilege the majority allowed the appeal: the article concerned a matter of high public interest, the publishers took the sort of steps a responsible journalist would take to verify and present the story, and the judge’s directions and treatment of the jury’s findings (notably a misdirection requiring the jury to assume falsity when assessing verification) precluded a fair application of the Reynolds test.

The Lords emphasised that Reynolds privilege requires (i) publication on a matter of public interest, (ii) that inclusion of the defamatory material genuinely contributes to that public interest, and (iii) that the steps taken by the journalists amounted to responsible journalism. A failure to delay publication in the circumstances did not, by itself, defeat the defence where editorial judgment and other verification steps were satisfactory.

This appeal arose from an article published in The Wall Street Journal Europe on 6 February 2002 which reported that the Saudi Arabian Monetary Authority was monitoring certain bank accounts at the request of United States authorities; the piece named a number of prominent Saudi businesses, including the Abdul Latif Jameel group. The claimants were Mr Mohammed Abdul Latif Jameel and a Saudi company in his group. At trial before Eady J and a jury the article was found defamatory and awards of £30,000 and £10,000 were made. The trial judge rejected the defendants' reliance on the Reynolds public interest defence and the defendants also failed in argument that the company should be required to prove special damage. The Court of Appeal upheld the trial judge on these points. The defendants appealed to the House of Lords.

Nature of the application and issues framed:

• Nature of claim: libel action by an individual and a trading company seeking damages and vindication of reputation.
• Issues: (i) whether a trading corporation must plead and prove special damage to recover for libel; (ii) whether the Reynolds public interest defence applied to the article — specifically whether the subject matter was of public interest, whether inclusion of the claimants' names was justifiable, and whether the journalism was responsible (verification and opportunity to comment).

Reasoning and outcome on the issues:

• On damage, the House (majority) held that under existing domestic law a trading company with a trading reputation in this jurisdiction may recover general damages without pleading or proving special damage; the historical authorities (notably South Hetton) remain good law and the European Court’s jurisprudence (Steel and Morris) allows Member States a margin of appreciation on how to balance reputational protection and freedom of expression.
• On Reynolds privilege, the majority concluded that the article dealt with an issue of high public importance. The inclusion of the named companies served the thrust of the story and the publishers had taken verification steps (including confirmation understood to have been given by a Treasury contact in Washington). The trial judge’s misdirection to the jury (to assume falsity) and the Court of Appeal’s treatment of the verification evidence undermined a fair assessment of responsible journalism. On the material before the House the Reynolds defence succeeded and the action was dismissed.

The House commented on the practical application of Reynolds: the public interest requirement is to be judged objectively by the court; inclusion of particular defamatory material must be justified by contribution to the public interest; and the responsible journalism standard is to be applied flexibly and pragmatically, giving appropriate weight to editorial judgment and the realities of investigative reporting.

Appeal allowed. The House held (majority) that (1) under existing domestic law a trading company with a trading reputation in England and Wales may recover general damages for libel without pleading or proving special damage, and (2) the publication in question attracted the Reynolds public interest defence because it concerned a matter of high public interest and the defendants had taken the steps a responsible journalist would take to verify and present the story; the judge’s misdirection on assumed falsity and the Court of Appeal’s reliance on the jury’s answers deprived the defendants of a fair assessment of the Reynolds defence, so the action was dismissed on that ground.

Trial before Eady J and a jury (judgments including [2003] EWHC 2945 (QB) and [2004] EWHC 37 (QB)); appeal to the Court of Appeal dismissed ([2005] EWCA Civ 74, [2005] QB 904); further appeal to the House of Lords allowed ([2006] UKHL 44).