Jameel v Wall Street Journal Europe (2006)

Can it now be suggested that following the decision in Jameel v Wall Street Journal Europe [2006}, Anglo-Welsh law freed journalism from the shackles of defamation law? Critically discuss this view and particular, what should a journalist learn from this case?

There is little question that Jameel v Wall Street Journal Europe^[1] represents an exclamation point in the transformation of UK defamation law from a regime of press restrictions into the modern era of greater press freedoms. It is submitted that a critical analysis of the various opinions delivered by the House of Lords in Jameel does not reveal an unshackling of the existing defamation laws so much as the decision articulates a system of conditional release in contrast to the former legal test.

The relaxation of newspaper libel law rules that can be traced to the 1975 Horrocks^[2] decision found its clearest voice in Reynolds v Times Newspapers Ltd^[3]. However, the reasons of the House of Lords in both Reynolds and Jameel cannot be taken as a blanket journalistic protection against defamation actions. Particular areas of limitation that remain as ones of potential vulnerability for the unwary editor or journalist are the limits that a court will place upon inter-related concepts of public interest and the emerging defence of responsible journalism.

The House of Lords devoted considerable judicial energy in Jameel to the separate question of whether a trading company is required to establish a special damages claim as a precondition to its entitlement to general damages in a libel action. It is of interest that Article 10 of the European Convention on Human Rights was specifically disavowed in Jameel as applicable to the UK law on this point, both on its own terms and as a basis for the House of Lords to re-visit UK domestic law.^[4] The resolution of this issue is distinct from those be considered in the present question regarding the relaxation of the rules applicable in substantive UK libel law; the analysis below excludes these considerations discussed in Jameel for this reason.

The history of UK defamation law generally, and the law of libel in particular, has been witness to an ongoing legal tension between the recognition of a duty to ensure a proper redress for injuries caused to personal reputations by defamatory words, and a corresponding duty to preserve the societal need for freedom of speech.^[5] The dynamics of this contest have been the subject of numerous commentaries from learned authors and jurists; as early as 1781 Samuel Johnson stated the central issue of English libel law as …‘All injury is either of the person, the fortune or the fame…it is a certain thing…that a jest breaks no bones’.^[6] ‘Jests” or similar defences were traditionally ones of limited application in the UK.

Since Johnson’s time UK law has recognised various circumstances that contribute to the broad concept of qualified privilege. As a general rule, a qualified privilege may be claimed only by the maker of an otherwise defamatory statement. The privilege reflects what is referenced in both the Court of Appeal and House of Lords decisions in Jameel as the duty / interest approach, stated by Lord Bingham as the requirement of a reciprocal duty and interest between the publisher and the recipient of the statement in question or, …“in a simpler and more direct way, whether the public was entitled to know the particular information.”^[7]

The defence of qualified privilege was one of limited application in the UK courts well into the twentieth century as judges and juries clearly favoured reputation over journalistic expression. It is significant that the Lords did not see the present case as a change in the law; Reynolds was characterised as the groundbreaking precedent, and Jameel is a subsequent application of its principles.^[8]

Jameel confirms the first limitation on the availability of a Reynolds privilege to cases where the impugned statement is admitted to be defamatory. The House of Lords use this philosophical position as their point of departure in considering the foundation to the Reynolds approach – the inherent value of informed public opinion regarding significant public issues.

While the ten part qualified privilege test enunciated in Reynolds^[9] is cited in Jameel as a non-exhaustive guideline rather than a rule, it is difficult to imagine a newspaper that substantially complied with the Reynolds test ever being the target of a successful libel action. The bedrock components of the Reynolds test are public interest and the concept of responsible journalism; these are the most important issues considered by the House of Lords in Jameel.

Lord Bingham and Lord Hoffman expressed different resolutions to the same questions in this regard. Lord Bingham re-stated the traditional foundation for qualified privilege, the duty / interest test: is the public entitled to know the particular information giving rise to the claim?^[10] The Lords (as did the Court of Appeal), made a clear distinction between an important public interest and matters that the public might find interesting, the ‘…most vapid tittle-tattle about the activities of footballers’ wives’ a pithy example.^[11]

On this point, it is submitted that Jameel is a virtual sanction for newspaper publishers ‘bootstrapping’ themselves into an unassailable position by manufacturing a public interest where one may never have existed previously; the following schematic is an illustration:

1. Newspapers exist to sell information
2. The more ‘interesting’ a newspaper makes itself to its potential readership, the more papers it is likely to sell
3. The greater the newspaper circulation, the more influential the newspaper with respect to its ability to reflect public opinion
4. The greater the influence of the paper, the more authoritative its internal decisions regarding publishing material that it deems important to the ‘public interest’

The 2003 House of Lords decision in Bonnick v Morris^[12] applied Reynolds to formulate this test to determine what constitutes ‘responsible journalism’: there is no duty to publish and the public have no duty to read material which the publisher has not taken reasonable steps to verify.^[13] Further, weight should be given to the efforts of the professional opinions of editors and journalists in this regard.^[14]

This definition of responsible journalism in Jameel is important for two distinct reasons:

1. The House of Lords have elevated journalism to the level of an essential public service, whose practitioners will be afforded great latitude where honest although far reaching errors are committed
2. Lords Bingham and Hoffman place repeated emphasis upon the reputation Wall Street Journal (WSJ) as a quality publication in assessing its potential culpability; editorial reputation is used to assess the conduct of both reporter and editors^[15]

This approach by the Lords invites the rhetorical question – will an egregious defamatory statement be more readily excused if the publisher is the London Sun or the Wall Street Journal?

Lord Hoffman articulated the responsible journalism / qualified privilege defence as a three headed proposition: verification of the story; an opportunity provided to the claimant to respond; the propriety of publication of the subject story in light of United States diplomatic policy at the time.

One may again readily conclude in terms of the verification issue that the Lords were prepared to accept without apparent reservation the self serving evidence of the defence regarding its internal efforts to verify the published story. The Lords made this finding where the Court of Appeal had expressed some reluctance concerning the state of the pleadings at trial that gave rise to the appeal.^[16]

On the opportunity to respond question, it seems patent that the claimant’s representative’s request for a further 24 hours to respond to the WSJ when first approached by the WSJ reporter carries a ring of reasonableness with it. It is respectfully suggested that the desire of the Lords to sidestep this failure by the WSJ reporter as one not fatal to the responsible journalism defence is one of the significant areas of potential distinction when Jameel is considered in future libel proceedings. Reasonable people will struggle with the concept that the claimant’s request 24 hours to respond, given the seriousness of the WSJ allegation, was a bar to professional journalism, especially given the high level WSJ United States government contacts that WSJ described at trial.

The third arm of the responsible journalism concept as Lord Hoffman describes it relates to the overwhelming public importance of the post 9 / 11 tragedy and the United States investigative efforts. Although obiter to the main judgements of Lord Hoffman and Lord Bingham, the words of Lord Scott in characterising the Kingdom of Saudi Arabia as undemocratic^[17] are perhaps a further hint as to why the Lords were prepared to permit WSJ its journalistic liberties.

There is no question that Jameel elevates Reynolds from an example of authoritative jurisprudence to that of a ‘different jurisprudential creature’^[18]. As the court states, the status of Reynolds entitled it to be christened as the Reynolds ‘public interest defence’. As noted above, Reynolds is the operative law; Jameel is an example of how Reynolds may be applied.

A comprehensive study conducted at Vanderbilt University regarding the impact of Reynolds upon UK libel law, both in practice and procedure, is instructive in a number of respects.^[19]

Since Reynolds was decided in 2001, researchers determined that the threats of legal action advanced to UK newspapers and other media outlets generally declined. In addition, a number of related but non-juridical developments are likely to have contributed to this decline, a number of which are outlined below.

There is little question that the time honoured balancing act between reputation and freedom of the UK press is now tilted towards a process where so long as the publisher can place their actions, both reporting and editorial, within the broad and flexible public interest standard as distilled from the cumulative effect of Reynolds, Bonnick, and Jameel, the Reynolds pubic interest defence will carry the day. Only the most cavalier and perhaps prurient reportage could fail to fall under this umbrella.

Further, other developments in UK civil litigation have made a prospective libel action even more problematic. Those factors include:

• Judicial discretion concerning limits on available damages awards
• Cost of libel litigation generally (where counsel fees regularly exceed £400 per hour)
• Civil Procedure Rules that stress early settlements and offers of amends
• Press Complaint Commission – Code of Practice; this non – litigation remedy pre-dates Reynolds, but it must be considered as a public body with the authority to review complaints of potentially defamatory statements

The most intriguing of the long term impacts of Reynolds has been the increased reliance by large media corporations upon the skills of the media lawyer actively engaged in the day to day editorial activities of many of the UK’s larger newspapers.^[20]

What can a journalist learn from Jameel?

There is no question that as Jameel is a natural extension of Reynolds, the defence of public interest will be made out where the following circumstances exist in combination:

1. The newspaper believes that the issue upon which the erroneous or false statement was made was one of public importance
2. The stronger the newspaper’s prior reputation for quality reporting, the broader the ambit for error a court is likely to provide
3. The journalist makes reasonable, but not exhaustive efforts to work within the Reynolds responsible journalism defence, particularly with respect to verification and offering the subject an opportunity to respond to the story as proffered; the reasonableness of which may be closely connected to (2) above

As noted, however, Jameel cannot be taken as an endorsement of slipshod or superficial research and reporting practices. Baroness Hale was the most apt of the Lords commentators on this point, in stating that a Reynolds – styled defence is not a sanction for a journalistic free for all, ‘…to publish without being damned.’^[21] Given the emphasis placed upon the reputation of the WSJ and the post- 9/11 environment in which the subject story was published, the ability to factually distinguish Jameel cannot be discounted.

Bibliography

Financial Times, “Government Rejects call for UK Press regulation” (October 13, 2003) http://www.freepress.net/news/1440 (Accessed January 28, 2007)

Megarry, Robert “A Second Miscellany-at-law” (London: Stevens and Sons, 1973)

Press Complaints Commission (UK) http://www.pcc.org.uk/index2.html (Accessed January 28, 2007)

Weaver, Russell L. et al, “Defamation Law and Free Speech: Reynolds v Times Newspapers and the English Media,” (2004) Vanderbilt Journal of Transnational Law No. 5, 37

Table of Cases

Bonnick v Morris [2003] 1 AC 300

Horrocks v Lowe [1975] AC 135

Jameel and others (Respondents) v. Wall Street Journal Europe Sprl (Appellants) [2006] UKHL 44

Jameel and others v Wall Street Journal Europe Sprl (No.2) [2005] EWCA 74

Lewis v Daily Telegraph Ltd [1964] AC 234

Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783

Reynolds v Times Newspapers Ltd [2001] 2 AC 127

South Hetton Coal Company Limited v North-Eastern News Association Limited [1894] 1 QB 133 (C.A)

Steel and Morris v United Kingdom (2005) 41 EHRR 403

1

---

Footnotes

^[1] [2006] UKHL 44

^[2] Horrocks v Lowe [1975] AC 135

3[2001] 2 AC 127

4 Jameel, (HL) para 19; procedural standards in libel actions are equally applicable to all legal entities

^[3]

^[4]

^[5] Weaver, Russell L. et al, “Defamation Law and Free Speech: Reynolds v Times Newspapers and the English Media,” (2004) Vanderbilt Journal of Transnational Law No. 5, 37

^[6] Johnson’s comment upon Solicitors at law v Robinson (1781) 2 Hailes dec.8821 In: Megarry, Robert “A Second Miscellany-at-law” (London: Stevens and Sons, 1973), 340

^[7] Jameel (HL), para 30

^[8] Ibid, Lord Bingham, para 32

^[9] Reynolds, 206

^[10] Ibid, paras 32 – 41

^[11] Baroness Hale, para 125

^[12] [2003] 1 AC 300

^[13] Jameel (HL)Para 58 -65

^[14] ibid

^[15] Ibid; Lord Bingham, para 4,5, 35, 36 “respected and influential’; Lord Hoffman, para 41

^[16] Jameel (CA), (Phillips, MR) para 4 -8

^[17] Jameel (HL), para 115

^[18] Ibid, para 46

^[19] Weaver, 37, 40

^[20] Ibid, 45

^[21] Jameel, (HL), para 146