Wednesday Law Report: Proof of damage not needed to establish cause of action

9 February 2005 Jameel and another v Wall Street Journal Europe sprl ([2005] EWCA Civ 74) 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

IN SO far as it related to corporations, or foreign corporations, the principle that a claimant in a libel action did not have to allege or prove special damage in order to establish a cause of action did not violate article 10 of the European Convention on Human Rights.

The Court of Appeal dismissed the defendant's appeals against rulings, in a libel action brought by the claimant, rejecting its defence of qualified privilege, and its challenge to the principle that a claimant in a libel action did not have to allege or prove special damage in order to establish a cause of action, based on article 10 of the European Convention on Human Rights.

A substantial Saudi Arabian trading company and its general manager and president commenced a libel action against the defendant publisher in respect of an article published in the Wall Street Journal Europe, which they claimed had the meaning that they were reasonably suspected of having terrorist ties and of funnelling funds to terrorist agencies.

The defendant advanced a defence of qualified privilege of the type identified by the House of Lords in Reynolds v Times Newspapers Ltd [1999] 4 All ER 609, arguing that the test of qualified privilege had been reduced to the issue whether publication of the article in question constituted "responsible journalism".

That defence was rejected by the judge, who held that the fundamental test laid down by Reynolds v Times Newspapers was whether it was in the public interest for the article to be published.

The defendant also challenged the principle that a claimant in a libel action did not have to allege or prove special damage in order to establish a cause of action, on the ground that in so far as it related to corporations, or alternatively foreign corporations, it infringed article 10 of the European Convention on Human Rights. The judge gave a ruling rejecting that challenge. The defendant appealed against both rulings.

James Price QC and Justin Rushbrooke (Carter-Ruck) for the claimants; Geoffrey Robertson QC and Rupert Elliott (Finers Stephens Innocent)

Lord Phillips of Worth Matravers, handing down the judgment of the court, said that the phrase "responsible journalism" was insufficiently precise to constitute the sole test for privilege of the type identified in Reynolds v Times Newspapers Ltd. Responsible journalism had to be demonstrated before Reynolds privilege could be established.

There was, however, a further element that had to be demonstrated. The subject matter of the publication had to be of such a nature that it was in the public interest that it should be published. That was a more stringent test than that the public should be interested in receiving the information.

On the facts of the present case, the precise definition of Reynolds privilege was not material, because the defendant had not made out its case that it had satisfied the test of responsible journalism.

A requirement to prove special damage would not go far enough to provide necessary protection for the reputation of corporations that were at risk of being damaged by inaccurate press reports.

Whilst it was likely in practice that a foreign corporation which traded outside the jurisdiction but did not trade within it would have greater difficulty in establishing that it had a trading reputation within the jurisdiction, if it succeeded the interests of justice required that the same principles of law should apply to its claim for defamation.

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