Dr Ashti Hawrami v Journalism Development Network, Inc & Ors

A publisher relying on statutory reporting privilege must establish that the publication is a fair and accurate report or extract and that the relevant source is sufficiently apparent to the reader. A publication may lose privilege throughout where extraneous material and embellishment make it a critically different text. Fairness is assessed by the impact on the claimant’s reputation, including material omissions from the source. The court must determine the scope of privilege before determining meaning where a publication is hybrid. The natural and ordinary meaning is assessed from the publication alone. A defamatory meaning may arise at the level of strong grounds for suspicion or reasonable grounds to suspect, and need not amount to an allegation of guilt.

The claimant brought a libel claim concerning an investigative article published by the defendants about the rise and fall of a United States oilman in Iraq. The defendants relied on qualified privilege under Defamation Act 1996, s.15, contending that parts of the article fairly and accurately reported an earlier judgment and court proceedings, or extracted terms from a representation agreement.

A Master had previously dismissed the claimant’s summary judgment application except in relation to two passages. The trial concerned the remaining qualified-privilege issue, the natural and ordinary meaning of three versions of the article, and whether those meanings were defamatory at common law.

1. Qualified privilege. The court had to determine the extent of any protection under s.15 of the Defamation Act 1996 before determining meaning. The article was a hybrid publication, and the repetition rule did not apply to passages protected by s.15.
2. Under Part I of Schedule 1, a report need not be verbatim or a précis. It may be selective and impressionistic. Fairness and accuracy are matters of substance, tested by the impact on the claimant’s reputation. Material misstatements or omissions which create a substantially different and prejudicial impression defeat the privilege.
3. The source proceedings must be sufficiently apparent to the reader. Although privilege may attach to parts of a hybrid publication, it is lost from the whole publication where embellishment and intermingling of extraneous material make the account a critically different text. The article repeatedly presented the representation agreement as a corrupt kickback arrangement and omitted material findings in the source judgment which conveyed that the claimant acted with integrity and in the interests of the Kurdistan Region. None of the pleaded passages was protected by s.15.
4. The court then determined the natural and ordinary meaning of each version without using the Excalibur materials. Version 1 conveyed that there were strong grounds to suspect that the claimant had granted the Shaikan concession knowing of and because of a secret, corrupt and illegal agreement; that he knowingly failed to cancel the concession in breach of Kurdish anti-corruption law; and that there were reasonable grounds to suspect that he introduced Gulf Keystone to Etamic and proposed the transaction resulting in the payment of US$12 million.
5. The additional text in Versions 2 and 3 did not alter those meanings. Its location, the editor’s note, and the non-independent character of the lawyers’ statement meant that it did not provide an effective antidote to the allegations.
6. Each meaning was plainly defamatory at common law. The court therefore determined the preliminary issues against the defendants: the qualified-privilege defence failed, the meanings were the same in all three versions, and those meanings were defamatory.