Do Corporations Have an Immortal Part? - The Need to Prove Damage in Corporate Libel Baroness Hale's Dissent in Jameel v Wall Street Journal Europe SPRL [2006] UKHL 44
| Author | Neal Geach |
| Pages | 61-75 |
Baroness Hale’s Dissent in
Jameel v Wall Street Journal Europe SPRL [2006] UKHL 44Neal Geach4.1 Background 61
4.2 Facts and decision 62 4.3 Reasons for maintaining the law 63
4.4 Baroness Hale’s dissent 68
4.5 Desirability and likelihood of change 70
4.6 Conclusion 74
Reputation, reputation, reputation! O, I have lost my reputation! I have lost the immortal part of myself, and what remains is bestial.
Cassio in Othello, Act 2
4.1 BACKGROUND
As long ago as Shakespeare’s Othello, the importance of one’s reputation has been recognised as being of great importance because any injury to one’s reputation is a blow to the immortal part of oneself. Since the case of South Hetton Coal Company Ltd v North-Eastern News Association Ltd,
62 Part I – Tort Law
a corporate [claimant] which shows that it has a reputation within the jurisdiction, and that the defamatory publication is apt to damage its goodwill, has a complete cause of action capable of leading to an award of substantial damages. Other considerations could lead to an award of nominal damages.
The issue was re-examined in Jameel v Wall Street Journal Europe SPRL,
4.2 FACTS AND DECISION
The material facts for present purposes were that a Saudi Arabian trading corporation, the Abdul Latif Jameel Group of companies (Jameel Group), whilst not trading in England and Wales, had a trading reputation here. The defendant newspaper published a story which listed the Jameel Group as amongst a
Civ 1144, per Pill LJ.
number of individuals and companies who were being monitored by the Saudi Arabian Monetary Authority,
4.3 REASONS FOR MAINTAINING THE LAW
The decision, rather than maintaining the law, in fact extended the South Hetton principle to foreign corporations. Clearly, the case could not have been decided on the basis of not applying the principle to a foreign corporation whilst maintaining it for domestic ones. Therefore, the issue simply came down to whether or not the principle should be retained, particularly in light of the Human Rights Act 1998.
Since the case of South Hetton was decided, the biggest development with regard to this issue has, arguably, been the passing of the Human Rights Act 1998 and the subsequent incorporation of the European Convention on Human Rights, Art 10. Clearly, the interpretation of this Article would have a significant contribution to determining the issue at hand. Although the right to freedom of expression is not an absolute right, the defendant sought to argue that allowing a claimant trading corporation to bring an action when it cannot prove any financial loss was still an infringement of this fundamental right. The defendant argued further that this infringement could not be justified under any of the recognised qualifications to the right. It had previously been held that Art 10 had brought forth a ‘new landscape’ where freedom of expression is the starting point.
may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or rights of others …
Therefore, understandably the argument based on European Convention on Human Rights, Art 10 did not carry favour with the majority. As the majority in Jameel noted,
64 Part I – Tort Law
within the margin of appreciation which a state has in relation to the Article; and thus the argument that it was necessary for the South Hetton principle to be abolished due to Art 10 was ‘not sustainable’.
Therefore, while it was not necessary to abolish the principle, the majority still acknowledged that it was open to the House of Lords to review the principle and ascertain whether its retention was still desirable. One reason for removing the South Hetton principle is said to be that the directors of the company would still be free to bring an action. However, such reasoning is itself based on a presumption that any defamatory statement impacts on the individuals within the corporation as well as the corporation. Clearly, this will not always be the case
First, the good name of a company, as that of an individual, is a thing of value. A damaging libel may lower its standing in the eyes of the public and even its own staff, make people less ready to deal with it, less willing or less proud to work for it. If this were not so, corporations would not go to the lengths they do to protect and burnish their corporate images. I find nothing repugnant in the notion that this is a value which the law should protect. Nor do I think it an adequate answer that the corporation can itself seek to answer the defamatory statement by press release or public statement, since protestations of innocence by the impugned party necessarily carry less weight with the public than the prompt issue of proceedings which culminate in a favourable verdict by judge or jury. Secondly, I do not accept that a publication, if truly damaging to a corporation’s commercial reputation, will result in provable financial loss, since the more prompt and public a company’s issue of proceedings, and the more diligent its pursuit of a claim, the less the chance that financial loss will actually accrue.
The first factor was supported by Lord Scott, who highlighted the financial lengths that corporations will go to, through advertisements and sponsorship deals, in order to have themselves portrayed in a positive light. Corporations with bad reputations receive less sponsorship invitations and thus less...
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