His Highness Prince Moulay Hicham Ben Abdullah Al Alaoui of Morocco v Elaph Publishing Ltd

On an application concerning capability of meaning, the court must assess the article as a whole through the eyes of the hypothetical reasonable reader. The reader is neither naïve nor unduly suspicious, and strained interpretations must be rejected. Planned conduct does not, without more, convey fabrication or falsity. Nor is it ordinarily defamatory to allege that a person is acting against the interests of a political ruler, since that may depend on the views of the relevant section of the public. An allegation that a person instructed another to lie is different: it is capable of lowering the claimant in the estimation of right-thinking members of society. Capability of defamatory meaning is distinct from whether the meaning is true or has caused serious harm.

The claimant brought a libel claim concerning an Arabic article published on the defendant’s news website. The defendant applied for a determination that the pleaded words were incapable of bearing the pleaded defamatory meanings, and sought reverse summary judgment. The pleaded meanings alleged that the claimant had orchestrated plots against senior Moroccan officials, encouraged false allegations, and instructed a witness to lie about a meeting.

The court considered capability of meaning only. A preliminary determination of actual meaning and serious harm under section 1 of the Defamation Act 2013 was not pursued. The central issue was whether the article was capable of bearing the pleaded meanings when read by the hypothetical reasonable reader.

1. Capability test. The application was determined by applying the established principles summarised in Jeynes v News Magazines Limited [2008] EWCA Civ 130. The article had to be read as a whole, without over-elaborate analysis or strained interpretation. The publisher’s intention and extrinsic evidence beyond general knowledge were irrelevant.
2. Falsity and political opposition. The article was not capable of conveying that the claimant had induced false allegations, or had acted without caring whether allegations were true. The words “premeditated plot” and “ploy” conveyed planning, not fabrication. Secrecy did not imply falsity. Nor was it capable of being defamatory merely to allege that the claimant worked against the interests of a ruler. That conclusion followed Modi v Clarke [2011] EWCA Civ 937 and reflected the latitude afforded to political statements discussed in Lingens v Austria (1986) 8 EHRR 407 and Curran v Scottish Daily Record and Sunday Mail Ltd [2011] CSIH 86.
3. Alleged instruction to lie. The article was, however, capable of conveying that the claimant instructed Mr Moumni to lie by falsely presenting their meeting as coincidental. The wording concerning what was whispered, together with the references to coincidence, conspiracy and disbelief in the accidental-meeting account, was capable of bearing that meaning. An allegation that the claimant lied was capable of being defamatory and could cross the seriousness threshold, although actual serious harm remained for later determination.
4. The pleaded meanings corresponding to paragraphs 6.1 and 6.3 were therefore ruled incapable of being defamatory. The meaning corresponding to paragraph 6.2 was capable of being defamatory. Reverse summary judgment did not arise, and the parties were given time to consider amendments to the Particulars of Claim.

First-instance decision. No appellate history was stated in the judgment.