Jameel (Yousef) v Dow Jones & Company Inc.
| Jurisdiction | England & Wales |
| Neutral Citation | [2004] EWHC 1618 (QB),[2004] EWHC 1619 (QB) |
| Date | 2004 |
| Court | Queen's Bench Division |
Defamation - Pleadings - Presumption of damage - Libel claim by foreign individual - Minimal publication in England of alleged defamatory material - Publisher pleading claimant precluded from relying on common law presumption of damage - Whether presumption of damage compatible with publisher's right to freedom of expression - Whether defence plea to be struck out -
The foreign claimant issued defamation proceedings in England against the publisher of a US newspaper in respect of an article posted on an Internet website in the USA, which was available to subscribers in England. The claimant alleged that the article, together with a list of names in an Internet hyperlink referred to in the article, implied that he had been or was suspected of having been involved in funding a well known terrorist organisation. The publisher averred that only five subscribers within the jurisdiction had accessed the Internet article, that the claimant had in fact suffered no or minimal damage to his reputation and that article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998F1, precluded him from relying on any legal presumption of damage to establish injury or harm. In due course the claimant, while disputing that only five subscribers had read the article, accepted that there had been minimal publication within the jurisdiction. In interlocutory proceedings the judge granted the claimant's application to strike out that part of the defence by which the publisher sought to prevent him from relying on the legal presumption of damage and refused the publisher's application for summary dismissal of the claim, rejecting its contention that the claimant had no realistic prospect of success.
On the publisher's appeals against both orders—
Held, (1) dismissing the appeal against the striking out of part of the defence, that it was an irrebuttable presumption in English defamation law that the publication of a defamatory article damaged the person defamed by it; that the bringing of a defamation claim by a claimant who had suffered no or minimal damage to his reputation might constitute an interference with freedom of expression that was not necessary for the protection of the claimant's reputation; but that such cases would be very rare, would not have a chilling effect upon the media and did not require the presumption of damage to be abandoned for incompatibility with article 10 of the Convention; and that in such circumstances the appropriate remedy for a defendant was to challenge the claimant's resort to English jurisdiction, to apply to strike out the action as an abuse of process or to seek the imposition of costs sanctions (post, paras 27, 32, 37–41).
(2) Allowing the appeal and striking out the claim as an abuse of process, that, adopting the proactive approach required by the overriding objective under the Civil Procedure Rules of dealing with cases justly, and keeping a proper balance between the Convention right to freedom of expression and the protection of individual rights, the court was required to stop as an abuse of process defamation proceedings that were not serving the legitimate purpose of protecting the claimant's reputation, which included compensating the claimant only if that reputation had been unlawfully damaged; that the test whether there was a “real and substantial tort”, which the court applied when considering an application to set aside permission for service out of the jurisdiction, was equally applicable when considering whether a defamation claim was an abuse of process; that publication within the jurisdiction was minimal and did not amount to a real and substantial tort, the damage to the claimant's reputation was insignificant and the facts did not justify the grant of an injunction prohibiting further publication; and that, in those circumstances, it was disproportionate and an abuse of process for the claimant to proceed with his claim (post, paras 55, 69, 70, 74, 76–77).
(3) That to dismiss the claim for abuse of process did not infringe article 6 of the Convention, since that article required the provision of a fair and public hearing only in relation to an alleged infringement of rights which was real and substantial (post, para 71).
The following cases are referred to in the judgment of the court:
Berezovsky v Forbes Inc [
Brunswick (Duke of) v Harmer (
Chadha v Dow Jones & Co Inc [
Handyside v United Kingdom (
Hough v London Express Newspaper Ltd [
Hulton (E) & Co v Jones [
Jameel v Times Newspapers Ltd
Jameel (Mohammed) v Wall Street Journal Europe Sprl
Kroch v Rossell et Cie Société des Personnes à Responsibilité Ltd [
Loutchansky v Times Newspapers Ltd (Nos 2–5)
Morgan v Odhams Press Ltd [
Multigroup Bulgaria Holding AD v Oxford Analytica Ltd [
Prager and Oberschlick v Austria (
Schellenberg v British Broadcasting Corpn [
Shevill v Presse Alliance SA [
Shevill v Presse Alliance SA (Case C-68/93) [
Spiliada Maritime Corpn v Cansulex Ltd [
Sunday Times v United Kingdom (
Sunday Times v United Kingdom (No 2) (
Tolstoy Miloslavsky v United Kingdom (
Wallis v Valentine
Zana v Turkey (
The following additional cases were cited in argument:
Bachchan v India Abroad Publications Inc (
Bladet Troms? v Norway (
Broxton v McClelland [
Campbell v MGN Ltd
Castells v Spain (
Charleston v News Group Newspapers Ltd [
Gertz v Robert Welch Inc (
Goldsmith v Sperrings Ltd [
Lingens v Austria (
Reynolds v Times Newspapers Ltd [
Slim v Daily Telegraph Ltd [
Thorgeirson v Iceland (
The following additional cases, although not cited, were referred to in the skeleton arguments:
Al Rajhi Banking and Investment Corpn v Wall Street Journal Europe Sprl (No 2)
Assicurazioni Generali SpA v Arab Insurance Group (Practice Note)
Biogen Inc v Medeva plc [
English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd [
McFarlane v Tayside Health Board [
Ratcliffe v Evans [
INTERLOCUTORY APPEAL from Eady J
By a claim form issued on 18 July 2003 and particulars of claim dated 12 July 2003 the claimant, Yousef Abdul Latif Jameel, claimed damages against the defendant publisher, Dow Jones & Co Inc (“Dow Jones”), for an alleged libel contained in an article published by it from about 18 March 2003 and headlined “War on Terror: List of early Al-Qaeda donors points to Saudi elite charities”, which appeared together with a hyperlink to a “list of donors” in the Internet online edition of “The Wall Street Journal” available to subscribers within the jurisdiction of the English High Court. The claimant additionally sought an injunction restraining Dow Jones from further publication within the jurisdiction of the same or similar words defamatory of him. By para 3 of its defence Dow Jones stated that they would contend that article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998, precluded the claimant from relying on any legal presumption of damage to establish standing, injury or harm.
By an application notice dated 2 February 2004 served pursuant to
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