Shakil-Ur-Rahman v ARY Network Ltd & Anor

For publications after the commencement of the Defamation Act 2013, serious harm may be inferred from the inherent gravity of the allegations and the scale of publication. A defendant may rely on evidence of other possible causes to challenge attribution, but damages must isolate harm caused by its own publication. The grapevine effect may be included.

Qualified privilege does not protect an independent interview as a report of proceedings, unsupported serious allegations to a general audience, or a fresh attack disguised as a reply to an attack. The statutory tort of harassment requires conduct crossing a minimum threshold of oppressive and unacceptable seriousness and an impact on the claimant within the jurisdiction.

The claimant brought libel claims concerning 24 broadcasts and a harassment claim concerning more than 100 broadcasts transmitted by the defendants’ Urdu-language channel. The broadcasts made grave allegations of treachery, foreign collaboration, blasphemy and related misconduct.

An earlier judgment by Haddon-Cave J had determined the meanings conveyed and whether passages were fact or comment. The claimant’s defences of truth and fair comment were later struck out. The issues at trial included serious harm, abuse of process, qualified privilege, causation, damages and whether the harassment tort was committed in England and Wales while the claimant was mainly in Dubai.

1. Libel. Judgment was entered for the claimant on all 24 libel claims. The allegations were plainly defamatory. For publications after the commencement of the Defamation Act 2013, the claimant bore the burden of proving serious harm, but that harm could be inferred from the allegations’ gravity and the scale of publication. The earlier publications were not an abuse under the Jameel doctrine: the allegations were serious, distinctive and widely published.

2. Causation and damages. The court had to isolate injury to reputation and distress attributable to the defendants’ broadcasts. Harm caused by other publishers or unrelated conduct could not be attributed to the defendants. However, evidence of other possible causes could be considered on causation or the serious-harm threshold without becoming evidence in mitigation of damage. The grapevine effect of a broadcast could also be taken into account. Given the overlap between the publications, a single award was appropriate. The claimant was awarded £185,000, subject to avoiding double recovery in related proceedings.

3. Privilege. The statutory privileges in the Defamation Act 1996 did not apply. The broadcasts were independent interviews or comments, not fair and accurate reports of proceedings or copies or extracts of government publications. Duty-and-interest privilege failed because there was no duty to publish the grave unsupported allegations or corresponding interest in the general audience; the modern focus was responsible journalism under s.4 of the Defamation Act 2013. Reply-to-attack privilege was unavailable because the broadcasts were not necessary and proportionate defences of the defendants’ reputation, but fresh attacks on the claimant.

4. Harassment. Under s.1 of the Prevention of Harassment Act 1997, conduct must cross a minimum threshold beyond ordinary annoyance and irritation and become oppressive, unreasonable and unacceptable. The persistent broadcasts, including references to fatwa and Jihad, crossed that threshold. Nevertheless, harassment was not complete merely because the broadcasts occurred in England and Wales. The claimant also had to experience the impact there. As he was mainly in Dubai and the evidence did not establish such local impact, the harassment claim failed. This differed from libel, which was complete upon publication within the jurisdiction.

5. The harassment claim was dismissed. Consequential matters, including any injunction or publication of a judgment summary, were reserved for further argument.