Thursday Law Report: Presumption of damage not incompatible with human rights

10 February 2005 Jameel v Dow Jones & Co Inc ([2005] EWCA Civ 75) Court of Appeal, Civil Division (Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Sedley and Lord Justice Jonathan Parker) 3 February 2005

THE PRESUMPTION of damage that formed part of the English law of libel was not incompatible with article 10 of the European Convention on Human Rights.

An appeal by the defendant against a ruling striking out a plea in its defence to a libel action which attacked the presumption of damage was dismissed by the Court of Appeal, but its appeal against the refusal of its application for summary judgment was allowed.

The claimant was the brother of the claimant in Jameel v Wall Street Journal Europe sprl (Law Report, 9 February 2005). The defendant published the Wall Street Journal and the Wall Street Journal On-line. The claimant commenced libel proceedings against the defendant, complaining of an article posted on the internet servers of the Wall Street Journal On-line in New Jersey, which implied that he had been, or was suspected of being, involved in funding al-Qa'ida.

A box of text published as part of the article had a hyperlink which would enable readers of the article to find a so-called list of donors. The claimant claimed that the words accessible via the hyperlink, in their context, were defamatory of him.

In the course of the proceedings the judge ruled, inter alia, that a plea in the defence which attacked the presumption of damage on the ground that it was incompatible with article 10 of the European Convention on Human Rights should be struck out; and the defendant's application for summary judgment on the grounds, inter alia, that the action was an abuse of process, because only five subscribers within the jurisdiction were known to have followed the hyperlink and thereby accessed the list of donors, was refused. The defendant appealed.

James Price QC and Justin Rushbrooke (Carter-Ruck) for the claimant; Gavin Millar QC and Anthony Hudson (Finers Stephens Innocent) for the defendant.

Lord Phillips of Worth Matravers, handing down the judgment of the court, said that the presumption of damage that formed part of the English law of libel was not incompatible with article 10.

English defamation law had been well served by a principle under which liability turned on the objective question whether the publication was one which tended to injure the claimant's reputation. It would not be right to abandon that principle in the absence of a convincing case that it was in conflict with article 10.

However, if the claimant succeeded in his action and was awarded a small amount of damages, it could perhaps be said that he would have achieved vindication for the damage done to his reputation in England, but both the damage and the vindication would be minimal. The cost of the exercise would have been out of all proportion to what had been achieved.

If the court were considering an application to set aside permission to serve the proceedings out of the jurisdiction, it would allow that application on the basis that the five publications that had taken place in the jurisdiction did not, individually or collectively, amount to a real and substantial tort.

Jurisdiction was no longer in issue, but, for precisely the same reason, it would not be right to permit the action to proceed. It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little was now seen to be at stake.

The claimant's action would, therefore, be dismissed as an abuse of process.

Have you tried new the Independent Digital Edition apps?
Life and Style
ebookNow available in paperback
ebooks
ebookPart of The Independent’s new eBook series The Great Composers
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

ES Rentals

    iJobs Job Widget
    iJobs General

    Sheridan Maine: Accounts Assistant

    £25,000 - £30,000: Sheridan Maine: Are you looking for a fantastic opportunity...

    Neil Pavier: Commercial Analyst

    £50,000 - £55,000: Neil Pavier: Are you a professionally qualified commercial ...

    Loren Hughes: Financial Accountant

    £45,000 - £55,000: Loren Hughes: Are you looking for a new opportunity that wi...

    Sheridan Maine: Finance Analyst

    Circa £45,000-£50,000 + benefits: Sheridan Maine: Are you a newly qualified ac...

    Day In a Page

    No postcode? No vote

    Floating voters

    How living on a houseboat meant I didn't officially 'exist'
    Louis Theroux's affable Englishman routine begins to wear thin

    By Reason of Insanity

    Louis Theroux's affable Englishman routine begins to wear thin
    Power dressing is back – but no shoulderpads!

    Power dressing is back

    But banish all thoughts of Eighties shoulderpads
    Spanish stone-age cave paintings 'under threat' after being re-opened to the public

    Spanish stone-age cave paintings in Altamira 'under threat'

    Caves were re-opened to the public
    'I was the bookies’ favourite to be first to leave the Cabinet'

    Vince Cable interview

    'I was the bookies’ favourite to be first to leave the Cabinet'
    Election 2015: How many of the Government's coalition agreement promises have been kept?

    Promises, promises

    But how many coalition agreement pledges have been kept?
    The Gaza fisherman who built his own reef - and was shot dead there by an Israeli gunboat

    The death of a Gaza fisherman

    He built his own reef, and was fatally shot there by an Israeli gunboat
    Saudi Arabia's airstrikes in Yemen are fuelling the Gulf's fire

    Saudi airstrikes are fuelling the Gulf's fire

    Arab intervention in Yemen risks entrenching Sunni-Shia divide and handing a victory to Isis, says Patrick Cockburn
    Zayn Malik's departure from One Direction shows the perils of fame in the age of social media

    The only direction Zayn could go

    We wince at the anguish of One Direction's fans, but Malik's departure shows the perils of fame in the age of social media
    Young Magician of the Year 2015: Meet the schoolgirl from Newcastle who has her heart set on being the competition's first female winner

    Spells like teen spirit

    A 16-year-old from Newcastle has set her heart on being the first female to win Young Magician of the Year. Jonathan Owen meets her
    Jonathan Anderson: If fashion is a cycle, this young man knows just how to ride it

    If fashion is a cycle, this young man knows just how to ride it

    British designer Jonathan Anderson is putting his stamp on venerable house Loewe
    Number plates scheme could provide a licence to offend in the land of the free

    Licence to offend in the land of the free

    Cash-strapped states have hit on a way of making money out of drivers that may be in collision with the First Amendment, says Rupert Cornwell
    From farm to fork: Meet the Cornish fishermen, vegetable-growers and butchers causing a stir in London's top restaurants

    From farm to fork in Cornwall

    One man is bringing together Cornwall's most accomplished growers, fishermen and butchers with London's best chefs to put the finest, freshest produce on the plates of some of the country’s best restaurants
    Robert Parker interview: The world's top wine critic on tasting 10,000 bottles a year, absurd drinking notes and New World wannabes

    Robert Parker interview

    The world's top wine critic on tasting 10,000 bottles a year, absurd drinking notes and New World wannabes
    Don't believe the stereotype - or should you?

    Don't believe the stereotype - or should you?

    We exaggerate regional traits and turn them into jokes - and those on the receiving end are in on it too, says DJ Taylor