Dow Jones & Company Inc. v Yousef Abdul Latif Jameel

Lord Justice Phillips MR:

This is the judgment of the Court

Introduction

This is an appeal against four interlocutory rulings against the defendant (' Dow Jones') made by Eady J in two separate judgments on 6 July 2004. It was heard conjointly with an appeal against a preliminary ruling given by Eady J on 5 December 2003 in Mohammed Abdul Latif Jameel and Abdul Latif Jameel Company Limited v The Wall Street Journal Europe SPRL ('the Mohammed Jameel Action'). That action resulted in awards of damages in favour of each of the claimants. We heard other grounds of appeal against that result at an earlier sitting. In a judgment which we are handing down at the same time as this we have dismissed all the grounds of appeal in that action.

The claimant in this action is the brother of the first claimant in the Mohammed Jameel Action. Dow Jones is, we presume, affiliated with the defendant in the Mohammed Jameel Action. Dow Jones publishes The Wall Street Journal and The Wall Street Journal On-line. The latter is a publication made on a world wide web site, access to which is available to subscribers. In each action the individual claimants complain of publications implying that they have been, or are suspected of having been, involved in funding al Qaeda. In each action the defendants have not sought to justify the defamations alleged. Rather their case has been that they have been acting as responsible journalists in reporting statements made by the US authorities.

One of the rulings that we deal with in this appeal struck out from the defence a plea which attacked what has been described as 'the presumption of damage' on the ground that it is not compatible with Article 10 of the European Convention on Human Rights. More precisely, this plea was as follows:

"The Defendant …will contend that Article 10 of the European Convention on Human Rights precludes [the Claimant] from relying on any legal presumption of damage to establish standing, injury or harm."

This attack was, of course, made in respect of a claim by an individual claimant. In the Mohammed Jameel Action what appeared to be a similar point was taken in respect of the claim by the corporate claimant. Because of this apparent similarity we dealt with the point in each appeal at the same hearing. In the event the arguments advanced in each appeal proved very different. The appeal in relation to the presumption of damage is brought with permission granted by Sedley LJ.

The second issue raised by this appeal is whether the claimant has any prospect of proving that the words complained of were written of and concerning him. Dow Jones contends that he has not and advanced this and other grounds in support of an application for summary judgment. The judge ruled in favour of the claimant on this point. Sedley LJ refused permission to appeal against this ruling. In the course of argument we invited Mr Gavin Millar, who appeared on behalf of Dow Jones, to renew the application for permission to appeal. He did so and we granted the application.

The other two issues raised on this appeal both arise out of the fact that the publication in this jurisdiction of which complaint is made was minimal. This led Dow Jones to include in their grounds for seeking summary judgment the contentions (1) that the claimant could not demonstrate that a real and substantial tort had been committed in this jurisdiction and (2) that this action was an abuse of process.

The claim

On 18 March 2003 Dow Jones posted on the world wide web servers of the Wall Street Journal On-Line in New Jersey the article complained of ('the article'). This enabled subscribers around the world, and in England in particular, to draw down the article. According to Dow Jones the article remained on the website until around 22 March 2003, when it was moved into an archive. It remained in the archive until July 2003, when it was removed altogether.

The Article began as follows:

"WAR ON TERROR

List of Early al Qaeda Donors Points to Saudi Elite, Charities

By GLENN R. SIMPSON

Staff Reporter of THE WALL STREET JOURNAL

WASHINGTON – A cache of al Qaeda documents seized last year by U.S. agents in Bosnia identifies some of Saudi Arabia's richest and most influential families as among the first financial supporters of Osama bin Laden, and shows how al Qaeda used charitable arms of the Saudi government.

An account of the roots of al Qaeda found on a computer used by a suspected al Qaeda front group contains a 1988 memorandum listing 20 Saudi financial backers of Mr bin Laden – "the Golden Chain," as the bin Laden organization called it. The list includes the families of three billionaire Saudi banking magnates, several top industrialists and at least one former government minister.

The Golden Chain list, which doesn't indicate the size of the donations, was drawn up at a time when supporting the Afghan revolt against Soviet invaders – Mr bin Laden's cause at the time – was a top U.S. foreign policy objective, as well as a Saudi national cause with deep patriotic and religious overtones. The list doesn't show any continuing support for al Qaeda after the organization began targeting Americans, but a number of the Saudis on it have been under scrutiny by U.S. officials as to whether they have supported terrorism in recent years."

There was a box of text published as part of the article, headed "The Golden Chain", which read as follows:

"See the list of donors originally filed under seal in U.S District Court for the Northern District of Illinois ( United States of America v Enaam Arnout). The list was seized from the Benevolence International Foundation, an alleged al Qaeda front. According to a court filing, "BIF possessed a handwritten draft list of people referred to within al Qaeda as the "Golden Chain", wealthy donors to mujahdaeen efforts. At the top of the list is a Koranic verse stating 'And spend for God's cause'. The list contains twenty names, and after each name is a parenthetical, likely indicating the person who received the money from the specified donor. "

There was a hyperlink which would enable readers of the article to find the so-called list of donors. On that list appeared the words "In the name of God, the most gracious, the most merciful and spend for God's cause (Quraanic verse)", followed by the list. The name which appeared fourth on the list was "Yousif Jameel … (Baterji)".

It is pleaded in the particulars of claim that the words in the Golden Chain list accessible via the hyperlink, in their context, were defamatory of the Claimant and bore the following natural and ordinary or inferential meanings:

"6.1 that the Claimant had been among the first financial supporters of the notorious terrorist Osama bin Laden and al Qaeda;

6.2 that there were reasonable grounds to suspect that the Claimant had continued thereafter to provide financial support to Osama bin Laden and al Qaeda, that he had financially supported such terrorism in recent years, and in particular that he supported those responsible for the September 11 attacks."

There was lively debate before us as to the precise circumstances in which the Golden Chain list came into the possession of Dow Jones. There is no need to go into this in detail. It is common ground that the list originated in Bosnia and was made available by a United States prosecuting attorney, pursuant to letters rogatory, to claimants in civil proceedings in Washington brought by 9/11 victims against several hundred defendants, mostly Saudi, who are alleged to have funded terrorists ('the Burnett action'). It is the claimant's case that this list should have been used exclusively for the purpose of the civil proceedings but that it was improperly made available to Dow Jones by those acting for the claimants. It is Dow Jones' case that no restrictions were placed upon the use that could be made of the list when it was released to the civil claimants and that the United States authorities were content that the list had been made public.

It is the claimant's case that the Golden Chain list was first put into the public domain by Dow Jones. It has since become a very well known document, although we did not understand Mr Price to submit that Dow Jones was responsible for this. There has been placed in evidence in this action a statement by the claimant in an action against Times Newspapers Limited which relates to an article in the Sunday Times on 8 June 2003 which, so it seems, concerned the litigation inspired by the Golden Chain list. It is the claimant's case that, as a result of the Golden Chain list he has become suspected of association with Osama bin Laden and al Qaeda when he has had no connection of any kind with either. On the strength of his name in the Golden Chain list he has been added as a defendant in the Burnett action. In these proceedings his objective is not to recover damages but to achieve vindication.

The claimant's solicitors wrote a letter before action on 15 April 2003 in moderate terms. They stated:

"We...