Defamation / Reputation
Afanasyev v. Zlotnikov
Closed Mixed Outcome
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The England and Wales Court of Appeal allowed an appeal and stayed defamation proceedings against Dow Jones, publisher of the Wall Street Journal, on the grounds that no substantial tort had been committed within the jurisdiction and the action was an abuse of process. The action concerned the publication of an article which implied that the Respondent had been involved in the financing of Osama Bin Laden and Al-Qaeda. The Court reasoned that because there was very limited publication in the jurisdiction, the damage caused was minimal and therefore any vindication would also be minimal, so that the costs of pursuing that would be disproportionate. However, the Court rejected Dow Jones’ argument that the presumption of damage applicable to defamation cases was incompatible with Article 10 of the European Convention on Human Rights and has a chilling effect because it reasoned that “that English law has been well served by a principle under which liability turns on the objective question of whether the publication is one which tends to injure the claimant’s reputation”.
Dow Jones is the publisher of the Wall Street Journal and the Wall Street Journal On-line. On March 18, 2003 an article was posted in the online version of the Journal which discussed the “Golden Chain”, a list of 20 Saudi nationals who had allegedly financed Osama Bin Laden and Al Qaeda. The article contained an hyperlink leading to the list of the alleged donors. The list contained the name of the Respondent, Yousef Abdul Latif Jameel who wrote to Dow Jones on April 15 requesting the removal of the article. Dow Jones rejected the request and Mr. Jameel issued a Claim Form on July 18. He was granted permission to serve out of jurisdiction after which Dow Jones was duly served in New York on November 23, 2003.
Dow Jones didn’t challenge the English jurisdiction and, in its Defence stated the website’s subscriber base within the jurisdiction numbered 6,000. On July 6, 2004, Mr. Jameel succeeded in an application to strike four paragraphs of Dow Jones’ Defence resulting in four interlocutory rulings in favor of Mr. Jameel. Dow Jones appealed and the case was heard by the Court of Appeal which issued its decision on February 3, 2005.
The Court had to determine the four issues raised by Dow Jones: whether the presumption of damage applicable to defamation cases was incompatible with Article 10 of the European Convention on Human Rights (ECHR) and the Human Rights Act; whether Mr Jameel, hereinafter “the claimant”, had a real prospect of proving that the words complained of concerned him; whether a real and substantial tort had occurred within the Court’s jurisdiction; and whether the action was an abuse of process.
The Court began its analysis by looking into the question of the compatibility of the presumption of damage with human rights law. On the basis of relevant precedent, the Court concluded that an irrebuttable presumption of damage existed under English law before 2000. Under this presumption, “publication of a defamatory article carries with it a presumption that the person defamed by it has suffered damage without the need to prove that anyone knowing that person has read the article” and “where a statement is published to a reader that is defamatory of an identifiable individual, it will not be possible for the publisher to prove that no damage has been caused to the individual simply by showing that the reader did not know the individual”. The Court noted that this presumption served a pragmatic purpose in preventing defamation proceedings becoming about “the claimant and the defendant each marshalling witnesses to say that, respectively, they did or did not consider that the article damaged the claimant’s reputation”. [paras. 27, 29 and 31]
The Court then proceeded to assess the compatibility of the presumption of damage with the ECHR which came into force in England with the Human Rights Act in 2000. Counsel for Dow Jones argued that holding a publisher liable when it has not been convincingly demonstrated that his publication has caused damage would result in an unjustified interference with freedom of expression and that the presumption of damage had a chilling effect on freedom of expression. While he conceded that whether damages are presumed or not would not make a difference in most cases concerning media publications, he considered that the presumption was determinant in this case as it had been proven that only 5 persons in the U.K. had accessed the publication, of which 3 worked for the claimant. Counsel for the claimant defended the presumption of damage on pragmatic grounds.
The Court reasoned that “circumstances in which a claimant launches defamation proceedings in respect of a limited circulation which has caused his reputation no actual damage will be very rare” and that therefore the fear of such suits would not have a significant chilling effect. The Court accepted that in the rare case that a claimant brings a defamation claim in circumstances where his reputation has suffered none or minimal damage this may constitute an unjustified interference with freedom of expression. However, it considered that defendants in those circumstances would be able to resort to challenging the English jurisdiction or seeking to strike out the action as abuse of process. Because of this, they concluded that the presumption of damage was not incompatible with Article 10 of the ECHR and rejected the appeal on this ground. [para. 39]
Next, the court reviewed the issue of the identification of the claimant. Counsel for Dow Jones submitted that the claimant “had no real prospect of establishing that readers in England would have understood that the article referred to him”. He based this argument on the fact that the names Yousif and Jameel were very common Muslim names. The Court accepted that “where a common name is included in an article, the name itself will not suffice to identify any individual who bears that name”. However, it considered that the claimant was sufficiently identified from the context of the publication, noting that “It may well be that the claimant was the only Saudi of that name who, in 1988, was sufficiently wealthy to feature on such a list”. For these reasons it rejected the appeal on this ground. [paras. 42, 45 and 46]
The Court then analyzed the two remaining grounds of appeal which, the Court said overlapped – namely that no substantial tort had occurred within the jurisdiction and that the action constituted abuse of process. Counsel for Dow Jones argued that publication in the jurisdiction had been minimal and it had done no significant damage to the claimant’s reputation. Counsel for Mr. Jameel accepted that the appellant may have succeeded if it had challenged jurisdiction in a timely manner but argued that, as Dow Jones had originally submitted to the jurisdiction, it had conceded this point. He said that the claimant had believed that substantial publication had indeed occurred in England and that the appellant had not disabused him. Because of this, it was too late for the appellant to make the point that no substantial tort had occurred, especially given that “In pursuing the English proceedings the claimant had acted to his detriment by permitting the possibility of bringing proceedings in an alternative jurisdiction to become time-barred.” He further argued that the claimant’s main concern was to achieve vindication which was accepted under English legislation as a legitimate reason for bringing a claim of defamation. [para. 53]
The Court rejected the argument that the appellant’s failure to timely challenge English jurisdiction estopped it from invoking the arguments concerning the limited publication in the jurisdiction at the appeal stage. The Court reasoned that “An abuse of process is of concern not merely to the parties but to the court”. The Court also reasoned that any prejudice caused to the claimant by the appellant’s failure to raise the points at a proper time could be addressed through means such as cost orders to compensate for legal costs unnecessarily incurred and making relief conditional on the appellant undertaking not to raise a limitation defense if proceedings were commenced in another jurisdiction. [para. 54]
The Court then proceeded to note that the coming into effect of the Human Rights Act in 2000 had made courts in the U.K. more ready to entertain arguments that a libel action constituted abuse of process. This, because “Keeping a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant’s reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged”. [para. 55]
The Court identified two goals for the claimant’s action: vindication and obtaining an injunction on the further publication of the article. It considered whether those goals were sufficient to justify the continuance of the action. In respect of the vindication goal, the Court considered that, even in the case of a global publication, a libel action in England relates exclusively to an independent tort or a series of torts in that country. Because of this, it was “not legitimate for the claimant to seek to justify the pursuit of these proceedings by praying in aid the effect that they may have in vindicating him in relation to the wider publication”. Further, the Court further noted that English law does not allow a court to make a declaration of falsity at the end of libel proceedings for which vindication primarily depends on the damages awarded to the plaintiff by the jury. The Court highlighted that this was especially true in the present case because the appellant was planning to present a qualified privilege defense, which would not have required debate on the factual veracity of the claim. [para. 6]
Based on the above, the Court concluded that, if proceedings were allowed to continue and the claimant were to be successful, he would receive some damages and a level of vindication but both the damages and the vindication would be minimal, because of which “The cost of the exercise will have been out of all proportion to what has been achieved”. Thus, the Court considered that “It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake”. [paras. 69 and 70]
Moving on to the injunction goal, the Court accepted that “Where a defamatory statement has received insignificant publication in this jurisdiction, but there is a threat or a real risk of wider publication, there may well be justification for pursuing proceedings in order to obtain an injunction against republication of the libel”. However, the Court considered that there was no likelihood that the appellant would republish the article in its original form and that, even if the proceedings were allowed to continue, the Court would not be able to impose an injunction of value to the claimant given the many forms a republication of the “Golden Chain list” could take. [para. 74]
Thus, the Court allowed the appeal on the grounds of no substantial tort within the jurisdiction and abuse of process and ordered a stay of the proceedings.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision produces a mixed outcome. The Court upheld the presumption of damage applicable to defamation cases as compatible with the European Convention on Human Right’s provision on freedom of expression. However, the Court also concluded (1) that no substantial tort occurs in cases where a defamatory publication is accessed only by a small number of persons within the jurisdiction and (2) that libel actions brought in circumstances where the damages that can be recovered are minimal constitutes abuse of process. These conclusions set a standard that protects freedom of expression by severely limiting the possibility of frivolous defamation claims.
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