Defamation / Reputation
Afanasyev v. Zlotnikov
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The UK High Court of Justice ruled in favor of investigative journalists in a libel claim. In September 2017, the Organized Crime and Corruption Reporting Project (OCCRP) published an investigative series on an alleged money-laundering operation involving members of the ruling elite in Azerbaijan. The case was brought against OCCRP by a member of the Azerbaijan parliament who claimed he was unjustly implicated in the alleged corruption. The Court ultimately found that a hypothetical reasonable reader would understand the qualifying language and disclaimers used in relation to his alleged involvement, and that while the report found there were reasonable grounds to suspect his involvement, the evidence presented was clearly inconclusive on his level of guilt.
The Claimant, Javanshir Feyziyev, is a citizen of Azerbaijan but resides for part of the year in the United Kingdom where his family lives permanently and his children attend school. He is a member of the Azerbaijani parliament and co-chair of the EU/Azerbaijan Parliamentary Cooperation Committee.
The defendants include the Organized Crime and Corruption Reporting Project, a registered association in Romania. OCCRP is the working name of the Journalism Development Network Inc, a non-profit corporation incorporated in the State of Maryland, United States which provides financial and other support for investigative journalism globally. The second defendant is Paul Radu, a Romanian national, who is co-executive director of OCCRP and on its board of Directors.
Feyziyev brought the libel claim in March 2018 based on two articles which were published online in September 2017 by OCCRP, and on related social media posts on twitter, among others. The two articles implicated him in an alleged “money-laundering operation and slush-fund involving members of the ruling elite in Azerbaijan.”
Radu stated that although he was listed as the coordinator of the Azerbaijanzi Laundromat Project, which produced the impugned article, he was only involved with developing the concept of the series. He claimed he did not edit, arrange, authorise or play any other role in the publication of the articles complained of, on the Website, on Twitter, or on other social media. The defendants jointly argued that that Feyziyev misinterpreted the findings of the report and that the articles did not “bear the defamatory meanings” complained of. On 28 March 2019, the defendants chose to wait until the court ruled on the interpretation of the meaning of the alleged defamatory statements, before amending their defense. [para. 10]
Justice Warby, sitting as a single judge, delivered the judgment of the High Court (Queen’s Bench Division).
The main issue before the Court was to determine the “single natural and ordinary meaning” of the impugned words used, based on whether a “hypothetical reasonable reader” would consider them to be defamatory. [Para. 15]
Following established legal standards, the Court assessed the gravity of the defamatory allegations according to the “Chase Levels” which assess whether a reader would believe 1) the claimant is guilty of the said act; 2) there are reasonable grounds to suspect that the claimant is guilty of defamation; or 3) there are grounds to investigate whether the claimant has committed the act. [papa. 13, see Chase v News Group Newspapers Ltd  EMLR 11  ] The defendants argued that the articles fell under Chase Level 2, that “there are grounds to suspect that the claimant was complicit in money laundering and corruption,” which the court noted would depend heavily on the specific context of its publication. [para. 12]
The Court then presented 13 “key principles”, of which 5 were pertinent for the present case:
Citing the recent Stoker v. Stoker ruling, the court observed that the supreme Court in that case relied on the principles that overelaborate analysis or strained readings of the wording should be avoided, and that the specific context in which the words appeared and the mode of publication must be taken into consideration when evaluating the meaning of a social media post.
The Court evaluated each of the articles individually finding that the meaning of one was not influenced by the other. The Court found that the first article did not convey the Chase Level 1 meaning, that the claimant is guilty of defamation, but rather, Chase Level 2 was applicable. Reading the article from the vantage point of a “typical reader,” the Court determined that the “natural and ordinary meaning,” established that there are reasonable grounds to suspect that the claimant, through the company AvroMed, engaged or assisted in illegal money laundering and in the bribery of influential European politicians, journalists and businessmen on a vast scale.” [Para. 25] The Court understood the typical reader to be “intelligent” and “literate,” and while the “existence and nature of the Laundromat are presented as an established fact,” “[l]inks between the claimant and the corrupt payments are suggested.” [Para. 28] The Court agreed with the defendants’ argument that the articles used qualified language in describing actions taken by Feyziyev, which is in marked contrast to “the unqualified language used in relation to information that is conveyed conclusively as fact.” [Para. 23] The Court concluded that while the phrasing implied possible complicity, it did not present it as fact or evidence of guilt.
The Court further affirmed the defendants’ point that a reasonable reader would recognize that the article presents the findings of a lengthy investigation by a team of journalists, editors and fact-checkers.
Regarding the Second Article, the Court found it too included sufficient “crucial disclaimers,” and therefore had the same natural and ordinary meaning as the First article. The article made clear that there was significant uncertainty surrounding Feyziyev’s precise involvement, despite the circumstantial and inconclusive evidence presented.
The Court granted the strike out request for the defendants to serve an amended defence in order to decide whether to replead a defense of truth. Further, the Court ordered them to respond appropriately to requests for further information, but that it would be “without prejudice to their right to rely on the source protection rights provided for by s 10 of the Contempt of Court Act 1981.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The ruling expands expression by protecting freedom of the press in general and investigative journalism specifically, as fair reports of allegations in the public interest. The Court further weighed in favor of the public’s right to know about issues of pubic significance, even without conclusive evidence.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
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