Walter Tzvi Soriano v Société D'exploitation De L'hebdomadaire Le Point SA
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 20 November 2020 |
| Neutral Citation | [2020] EWHC 3121 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2019-002482 |
| Date | 20 November 2020 |
[2020] EWHC 3121 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: QB-2019-002482
David Sherborne (instructed by Rechtschaffen Law) for the Claimant
Jonathan Price (instructed by Ince Gordon Dadds LLP) for the Defendants
Hearing dates: 10 th November 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is the trial of a preliminary issue as ordered by Master Eastman.
The Claimant is an English businessman.
The first Defendant is the publisher of a French-language weekly called ‘Le Point’. It also publishes an on-line version of the magazine at https://www.lepoint.fr.
The 2 nd Defendant is a journalist employed by the 1 st Defendant.
The claim arises over an article published in French in ‘Le Point’ on 21st June 2019, under the headline, “ United States: Israeli Agent targeted by Russian interference investigation” (or “ Etats-Unis: un agent Israelien vise par l'enquete sur l'ingerence russe”)
The claim form was issued against the defendants on 17 th July 2019. The claim is in libel and relies on the publication of the article in the hard copy edition of ‘Le Point’ and the publication of the same article on the website. The claim was first served on 23 rd August 2019. Although that service was said to have been deficient, the alleged defect was remedied.
Particulars of Claim were served on the same date or followed on an unspecified date in July 2019.
As required, the Particulars of Claim in paragraph 3 quote the words complained of in their French original.
As the Claimant was also obliged to do, he pleaded in paragraph 5 of the Particulars of Claim what is said to be a ‘true and literal translation’ of the words complained of into English.
The natural and ordinary meaning which the Claimant attributes to the words complained of is as follows,
‘The Claimant is a dangerous and unscrupulous secret agent with close connections to Donald Trump and his circle of advisers and the KGB, who knowingly uses illegal and “offensive” information gathering techniques (such as mobile data interception) and was responsible for spying on the Israeli police who were investigating charges against Prime Minister Benjamin Netanyahu.’
The time for the Defence has been extended and no Defence has been served, but the Defendants have suggested that the words complained of have the following natural and ordinary meaning,
‘The Claimant is a private security and intelligence consultant and there are grounds to investigate whether he has directly or indirectly used surveillance, military methods or data interception technology in his work; whether he was involved in the surveillance of police officers investigating President Netanyahu; and whether he was involved in Russia's attempt to interfere in the 2016 election in the USA.’
So far as meaning is concerned, the only evidence which is admissible is the words complained of and their context (if relevant). It is different so far as the first part of the preliminary issue is concerned. The correct English translation of the words is a proper subject of expert evidence and Master Eastman made directions for such evidence. I accept (as did Mr Price for the Defendants) that what matters is the natural and ordinary meaning which would be given to the words complained of by a French speaking reader. To some extent, therefore, the experts are able to assist on the second part of my task (the determination of meaning) as well as the first (the correct translation of the article), but I agree with Mr Price that the experts' role is limited. I must be alert to see that they do not exceed it. In saying this, I am not intending to be critical of Dr Labeau or Professor Marnette-Piepenbrock. Each responded to the instructions which they were given.
The translation included in the Particulars of Claim is contentious. The preliminary issue which Master Eastman ordered to be tried was in two parts:
i) To the extent not agreed between the parties, the correct English translation of the words complained or in paragraph 3 of the Particulars of Claim.
ii) The single meaning or single meanings of the words complained of in paragraph 3 of the Particulars of Claim.
In accordance with Master Eastman's directions I have the report commissioned by the Defendants of Professor Sophie Marnette-Piepenbrock dated 15 th June 2020, the report commissioned by the Claimant of Dr Emmanuelle Labeau dated 2 nd July 2020 (wrongly dated as 15 th June 2020 in the hearing bundle index) and the Joint report of the experts dated 18 th September 2020. Neither party wished to cross examine the other side's expert and the reports therefore stood as their evidence (with, of course, the joint report).
In paragraph 5 of the Joint Report:
i) The experts agree that the translation of the article by the Claimant (I assume in the Particulars of Claim) contains a number of inaccuracies.
ii) All the corrections suggested by Professor Marnette-Piepenbrock are accepted.
iii) With a qualification (see below) it would be fine for the Court to refer to the translation of Madame Huret-Morton. I attach as Annexe 2 Madame Huret-Morton's translation of the article in question (with paragraph numbers added for ease of reference).
iv) The qualification is that the word ‘relais’ (see paragraph 17 of the translation) should not be translated as ‘networks’ but as ‘middlemen’ (Dr Labeau) or ‘go-between’ (Professor Marnette-Piepenbrock).
I attach as Annexe 1 to this judgment a copy of the Joint Report of the experts. Without diminishing the importance of the remainder of the Joint Report, it included the following.
‘6. It is agreed that, in his article, the journalist uses several methods to show that he is reporting information rather than stating undisputed facts or directly expressing his own views. As one would in English, he uses reported discourse and quotation marks as well as expressions such as “ selon X” or “ d'après X” (according to X) to mark that distance. In addition, he also uses a linguistic strategy specific to French, the conditionnel journalistique (press conditional).
7. From a linguistic point of view it is noted that M. Leplongeon (i) evokes a number of sources, presented as reliable, provides quotes and (iii) exerts caution in his claims as shown by the use of distance markers such as ‘selon X’ or ‘d'apres X’ (according to X). The form of the article thus suggests a measured approach.
8. It is acknowledged that all articles using quotes – and the one under discussion, as any, not more or less – run the risk of taking words out of context unwillingly or on purpose. When the original quote is in a foreign language, there is the added risk of mistranslation. Overall, when compared to their original English sources, the quotes in the French article were found to be accurately translated but Dr Labeau noted that one was truncated. Mr Leplongeon signals that the information presented in the article comes from external sources by attributing opinions to their authors. This is conveyed by two prepositions, ‘selon’ (5 occurences) and ‘d'apres’ (1 occurrence) that can both be translated as ‘according to’. Those authors are identified when referring to precise documents, such as the Senate's letter of summons. However the sources invoked with ‘selon X’ or d'apres X’, which are presented by the journalist as well informed and reliable, are not identified — with the exception of a newspaper. From an inquisitive journalist's point of view, reasons for not identifying one's sources can be varied. This might be to protect the source but in some cases it might also reveal that the source is not reliable [footnote: The Defendants' expert understands that the precise reasons for not naming journalistic sources are outside the scope of her report. However, the Claimant's expert considers it as part of her instructions “to analyse an article authored by Marc Leplongeon and published in ‘Le Point’ on 21 st June 2019 and to comment on its meaning and its likely impact on a native French readership.’
The first part of my task has been considerably eased by the agreement between the experts. Neither party disowned that agreement and, as will have been seen, Master Eastman required me to determine the correct English translation ‘so far as it was not agreed’.
Consequently, I adopt the translation of Madame Huret-Morton with the following qualifications:
i) The experts are agreed that the word ‘relais’ has not been correctly translated as ‘networks’. The joint report of the experts settles on ‘middlemen’ as the correct translation of ‘relais’. I also adopt the translation of that word.
ii) The use of the conditionnel journalistique has no ready equivalent in English as the experts agree. They also agree that it may be used to convey uncertainty of three types: (a) modal (indicating some degree of uncertainty about the piece of information); (b) evidential (indicating the piece of information comes from a discourse other than the speaker) or (c) Alethic (indicating that the speaker does not responsibility for the utterance). Mr Price for the Defendants submitted that I should accept that its use in this article was (a) i.e. modal. Mr Sherborne submitted that it did no more than convey the English term ‘allegedly’ or ‘reportedly’ and so came squarely within the repetition rule by which a publisher cannot escape liability for what has been published by adding such words. This tips into the second part of my...
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