Jusan Technologies Limited v The Bureau of Investigative Journalism & Anor

In determining the meaning of allegedly defamatory publications, the court must identify the single natural and ordinary meaning conveyed to the hypothetical reasonable reader. Meaning and the fact/opinion question are closely connected and should not be treated as wholly separate, linear exercises. The court may find an allegation of knowing complicity from implication, context and the publication as a whole, even where no individual sentence expressly alleges wrongdoing. A corporate claimant may be defamed by an allegation concerning its knowledge or involvement, without the publication identifying a specific activity undertaken by it. The court must distinguish allegations of wrongdoing by one person from allegations attaching to a company connected with that person. Qualified or tentative language may affect the level of gravity without converting an allegation of fact into opinion.

Jusan Technologies brought two defamation claims concerning articles published by Telegraph Media Group Limited and openDemocracy Limited in 2022. The articles linked assets held through Jusan Technologies to wealth allegedly acquired illicitly by Nursultan Nazarbayev, former president of Kazakhstan.

The trials concerned preliminary issues about the natural and ordinary or inferential meanings of the publications, whether the meanings were statements of fact or opinion, and, in the openDemocracy claim, whether the basis of any opinion was indicated. The court also considered both the original and updated versions of the openDemocracy article. The central issue was whether the articles portrayed Jusan Technologies as an unwitting passive holder of assets or as knowingly complicit in arrangements for holding them.

1. Meaning and procedural scope. The court determined the meaning of the Telegraph article and both versions of the openDemocracy article. The updated openDemocracy article fell within the preliminary issue because the pleaded complaint covered the continuing publication of the article as updated.
2. Telegraph article. Applying the principles in Koutsogiannis v Random House Group Ltd, the article conveyed that, until the end of 2021 when ownership changed, Jusan Technologies hid and controlled assets which it knew had been acquired illicitly by Nursultan Nazarbayev. The article did not portray the company as merely an unwitting passive receptacle. References to control via the company, its role as an extension of Nazarbayev, and its single employee supported an inference of positive involvement. The meaning was a statement of fact.
3. openDemocracy article. The article conveyed that there were strong grounds to believe that Jusan Technologies had been set up in March 2020 to hold, through opaque arrangements, substantial assets representing proceeds of illicit profiteering from Kazakhstan’s natural resources, and that, as at January 2022, it remained knowingly complicit in holding those assets. The meaning was closer to the claimant’s case than to the defendant’s passive-vehicle meaning, but below Chase level 1 because it rested largely on implication, included qualified language and reported the claimant’s response.
4. The court held that this was a statement of fact, not opinion. The article was not structured as an expression of opinion, notwithstanding that the factual allegation was substantially based on implication. The update did not materially alter the meaning, although it reinforced the suggested link between Jusan Technologies and the Nazarbayev Foundation.
5. The passages concerning QAZ42 Investment’s purchase of a 3% interest did not convey a defamatory meaning concerning Jusan Technologies. The mere disparity between the price paid and the potential value of the interest did not imply impropriety.
6. The parties were directed to amend their statements of case and plead defences addressing the meanings found. A case management conference was to be listed.

This was a first-instance determination of preliminary issues. Nicklin J ordered the trials of preliminary issues in the two claims, which were heard together by Mr Justice Johnson.