In this libel action, the Plaintiffs are Mohammed Jameel, a prominent Saudi Arabian businessman, and a trading company, Abdul Latif Jameel Co., Ltd., a Saudi Arabian trading corporation, of which Jameel was president and general manager. The Wall Street Journal Europe Sprl. (Defendant) published

The article reported that, at the request of U.S. enforcement agencies, the Central Bank of Saudi Arabia (CBSA) was tracking certain bank accounts to preclude their use in directing funds to terrorist organisations. Moreover, the article named, as CBSA account holders, a number of individuals and companies, including that of the Plaintiffs' trading group. Although the Plaintiff company neither owned property nor did business within the U. K., it had established a commercial reputation there. In its complaint, the Plaintiffs did not plead special damages, relying instead on the English common law presumption of damage.

In interlocutory proceedings, the first instance judge saw no merit in the Defendant's claim that Article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as implemented by the U. K. Human Rights Act of 1998, Sch. 1, Pt I, had supplanted the common law rule. The Defendant also cited the defense of a qualified privilege that protects responsible journalism when it writes about matters of public concern. The judge, however, rejected the defense, inter alia, because the Defendant had neglected to obtain the Plaintiffs' position on the inclusion of its name before publication. The jury found that Plaintiffs had proved the libel and awarded modest damages. The Court of Appeal (Civil Division) dismissed the Defendant's appeal.

On Defendant's appeal to the House of Lords, that body allows the appeal by a vote of 3 to 2. The majority rules that, under existing U. K. law, a trading company linked to the U. K. like Defendant (as noted above) could recover general damages for libel without pleading or proving special damage if the libelous article had a tendency to damage it in its line of business. Although the Convention regime attaches a fundamental importance to the freedom to speak and publish free from unjustifiable restraint, the rights under Article 10(1) are not absolute.

Thus, Convention Article 10(2) provides that: "The exercise of these [speech, press etc.] freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

The Article 10 precedents of the European Court of Human Rights (ECHR) at Strasbourg have generally accorded a wide "margin of appreciation" to national authorities. In any event, the majority notes, they have not looked upon the current U. K. rule as necessarily inconsistent with Article 10 and have not called for revision of existing U. K. law.

The Defendant newspaper in this case relied on Article 10(1) to contend that a domestic rule entitling a trading corporation to sue in libel when it can prove no financial loss is an unreasonable restraint on the right to publish protected by Article 10. A majority of the Lords of Appeal disagree.

"The tort of defamation exists to afford redress for unjustified injury to reputation. By a successful action the injured reputation is vindicated. The ordinary means of vindication is by the verdict of a judge or jury and an award of damages. Most plaintiffs are individuals, who are not required to prove that they have suffered financial loss or even that any particular person has thought the worse of them as a result of the publication complained of. I do not understand this rule to be criticised. Thus the question arises whether a corporation with a commercial reputation within the jurisdiction should be subject to a different rule."

"There are of course many defamatory things which can be said about individuals (for example, about their sexual proclivities) which could not be said about corporations. But it is not at all hard to think of statements seriously injurious to the general commercial reputation of trading and charitable corporations: that an arms company has routinely bribed officials of foreign governments to secure contracts; that an oil company has wilfully and unnecessarily damaged the environment; that an international humanitarian agency has wrongfully succumbed to government pressure; that a retailer has knowingly exploited child labour; and so on. The leading figures in such corporations may be understood to be personally implicated, but not, in my opinion, necessarily so. Should the corporation be entitled to sue in its own right only if it can prove financial loss? I do not think so, for two main reasons."

"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." [** 24-26].

The majority also allows the appeal on the question of privilege "The decision of the House in Reynolds v Times Newspapers Ltd., 2 A.C. 127 [2001] built on the traditional foundations of qualified privilege but carried the law forward in a way which gave much greater weight than the earlier law had done to the value of informed public debate of significant public issues."

"Underlying the development of qualified privilege was the requirement of a reciprocal duty and interest between the publisher and the recipient of the statement in question that, where the court considered that the public interest criterion was met, the publisher was required to satisfy the test of responsible journalism by showing that reasonable steps had been taken to verify the publication." [** 28-29].

"Qualified privilege as a live issue only arises where a statement is defamatory and untrue. It was in this context, and assuming the matter to be one of public interest, that Lord Nicholls proposed, ... a test of responsible journalism, ... The rationale of this test is, ... that there is no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verify."

"As Lord Hobhouse observed with characteristic pungency, 'No public interest is served by publishing or communicating misinformation.' But the publisher is protected if he has taken such steps as a responsible journalist would take to try and ensure that what is published is accurate and fit for publication." [* 32].

The majority then applies these principles to the present case. "The Court of Appeal upheld the judge's denial of Reynolds privilege on a single ground, discounting the jury's negative findings concerning [the reporter's] sources: that the newspaper had failed to delay publication of the respondents' names without waiting long enough for the respondents to comment."

"This seems to me, with respect, to be a very narrow ground on which to deny the privilege, and the ruling subverts the liberalising intention of the Reynolds decision. The subject matter was of great public interest, in the strictest sense. The article was written by an experienced specialist reporter and approved by senior staff on the newspaper and [the] 'Wall Street Journal' who themselves sought to verify its contents. The article was unsensational in tone and (apparently) factual in content."

"The respondents' response was sought, although at a late stage, and the newspaper's inability to obtain a comment recorded. It is very unlikely that a comment, if obtained, would have been revealing, since, even if the [Plaintiffs'] accounts were being monitored it was unlikely that they would know. It might be thought that this was the sort of neutral, investigative journalism which [the] Reynolds privilege exists to protect. I would accordingly allow the appeal and set aside the Court of Appeal judgment." [* 35].

Citation: Jameel v. Wall Street Journal Europe Sprl., [2006] 3 W.L.R. 642, 2006 WL 2794164 (HL), [2006] U.K.H.L. 44 (House of Lords, October 11).