Case Summary and Outcome

The Appeals Panel of the Special Tribunal for Lebanon (STL) upheld the Contempt Judge’s (Lower Court) decision, acquitting Al Jadeed TV from the charges of knowingly and willfully interfering with the administration of justice by broadcasting information on purported confidential witnesses in an ongoing case (Count 1) and failing to remove such information from its website and social media channels (Count 2). The Panel also upheld the lower court decision, acquitting the Deputy News Director of Al Jadeed TV, Ms. Al Khayat, from Count 1, but overturned her conviction under Count 2. This case arose after Al Jadeed TV broadcast a series of televised episodes and published them online, revealing the identities of purported confidential witnesses in the ongoing Ayyash et al. case before the STL. The STL Prosecutor filed an Order in Lieu of Indictment, outlining contempt charges against the company and Ms. Al Khayat. The Panel noted that, in the absence of deliberate knowledge and intent to interfere with judicial proceedings, journalistic activity does not constitute contempt of court, thereby does not undermine the administration of justice.

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Facts

Between August 6 and August 10, 2012, Al Jadeed TV, operated by a media company registered in Beirut, Lebanon, broadcast five episodes relating to purported confidential witnesses in the ongoing Ayyash et al. case before the Special Tribunal for Lebanon (STL). The station subsequently published the same episodes on its website and social media platforms, including Facebook and YouTube. Ms. Al Khayat was a shareholder at Al Jadeed S.A.L. – the media company – and served as Deputy Head of News and Political Programs at Al Jadeed TV.

On August 10, 2012, the STL Pre-Trial Judge issued an order prohibiting the dissemination of the episodes. However, Al Jadeed kept them accessible online, allegedly in violation of the order. On January 31, 2014, the STL Contempt Judge issued a decision to initiate contempt proceedings, including an Order in Lieu of Indictment, against both Al Jadeed and Ms. Al Khayat. On the same day, the Judge recused himself from the case, and a new Judge was appointed to preside over the contempt proceedings. The charges of contempt were that the broadcast of the episodes would undermine public confidence in the Tribunal’s ability to protect the confidentiality of information about, or provided by, witnesses or potential witnesses (Count 1) and failing to remove this information from its website and YouTube channel (Count 2).

Under Count 1, the Accused were charged with knowingly and willfully interfering with the administration of justice by broadcasting information on alleged confidential witnesses in the Ayyash et al. case, potentially undermining public confidence in the Tribunal’s ability to protect witness confidentiality.

On September 18, 2015, the Contempt Judge delivered his Judgment, acquitting Al Jadeed of knowingly and willfully interfering with the administration of justice by broadcasting and/or publishing information on purported confidential witnesses in the Ayyash et al. case. With regard to Ms. Al Khayat, the Contempt Judge ruled that she was partially guilty for failing to remove the information on purported confidential witnesses from Al Jadeed’s website and social media platforms, sentencing her to a fine of 10,000 Euros.

Both the Prosecutor and the Defense filed Notices of Appeal against the Judgment before the STL Appeals Panel.

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Decision Overview

Presiding Judge Braidy delivered the judgment of the Appeals Panel of the Special Tribunal for Lebanon. The central issue was whether the Contempt Judge properly concluded that the published Episodes met the threshold for Contempt under Rule 60 bis (A), particularly regarding identifying protected witnesses, undermining public confidence, and exceeding the limits of press freedom during ongoing proceedings.

On the one hand, the Prosecutor appealed the acquittals of Al Jadeed on both Counts and Ms. Al Khayat on the first Count. Regarding Count 1, the Prosecutor alleged that the Contempt Judge erred in his application of the actus reus standard (material element). He argued that the Judge wrongly applied an objective likelihood test requiring proof of actual harm, instead of the proper “real risk” standard supported by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the European Court of Human Rights (ECtHR) precedents. The Prosecutor further contended that the Judge placed undue emphasis on whether harm or loss of confidence actually occurred, contrary to the deterrent purpose of contempt proceedings, and that the Episodes’ intent to expose purported confidential witnesses was sufficient to establish the requisite risk. Finally, he argued that the Judge erred in requiring proof that individuals were reasonably identifiable, stressing that the harm lay in the public’s perception of disclosure, and alternatively claimed a factual error in finding only three of eleven featured witnesses identifiable.

Regarding Count 2, the Prosecutor challenged the acquittals of both Ms. Al Khayat and Al Jadeed. On Ms. Al Khayat’s conviction, he argued that the Judge correctly inferred her knowledge of the August 10, 2012 Order requiring removal of the published content from the company’s website and social media platforms. In doing so, the Judge was entitled to infer that Ms. Al Khayat received Mr. Lodge’s email (Head of Registry and Resident Representative at the Tribunal’s Beirut office), drawing an analogy to the presumption that a properly posted letter is deemed delivered unless proven otherwise. The Prosecutor further supported the finding of willful blindness, emphasizing her senior managerial role over the Episodes, her duty to remain informed of Tribunal Orders, and her deliberate disregard of the August 10, 2012 Order. He also maintained that her denial of knowledge during questioning was unreliable, particularly as her claim of a forged signature was undermined by the withdrawal of Ms. Habli’s related complaint.

Turning to Al Jadeed, the Prosecutor challenged the Judge’s reliance on Lebanese Criminal Code Article 210, which establishes that legal entities can be held liable for acts committed by their directors, representatives, or agents when acting on the entity’s behalf or using its resources. The Prosecutor argued that by prioritizing Lebanese law over the interpretive framework of Rule 3, which allows the Rules to be interpreted in accordance with customary international law, international human rights standards, and general principles of international criminal law and procedure, the Judge adopted an unduly narrow approach to corporate liability that weakened the Tribunal’s contempt powers. The Prosecutor emphasized that Rule 60 bis should be interpreted in light of international law, human rights standards, and general principles of corporate accountability, none of which require the identification of a single natural person, and noted international trends recognizing corporate liability, including under the African Court protocol. He cautioned that reliance solely on Lebanese law risked impunity and unequal treatment between large and small corporations. He further argued that both actus reus and mens rea (mental element) could be fulfilled collectively by multiple individuals within a corporation, urging the Tribunal to adopt an expansive interpretation of corporate liability akin to its earlier approach in broadening terrorism under Lebanese law to reflect international norms. Finally, he contended that the Judge erred in rejecting attribution of Ms. Al Bassam’s conduct to Al Jadeed, since as Al Jadeed’s Director and Head of News she oversaw online content, responded to the Cease-and-Desist Letter, and failed to act despite knowledge of the Order, making her inaction imputable to the company.

On the other hand, the Defense argued, in relation to Count 1, that the challenges to Ms. Al Khayat’s acquittal lacked merit. The Defense maintained that the Prosecutor merely reiterated arguments already raised at trial, failed to prove any likelihood of undermining public confidence, and that the Judge had correctly applied the law by requiring ascertainable facts to demonstrate the gravity of the conduct. It further argued that actual harm was not required, but that objective likelihood could not be based solely on subjective impressions, and that the claims regarding witness identifiability did not show any impact on the Judgment.

Regarding Count 2, the Defense addressed the convictions of Ms. Al Khayat and Al Jadeed. Concerning Ms. Al Khayat, it appealed both actus reus and mens rea. On actus reus, it argued that the Judge erred in finding the Episodes available online beyond August 10, 2012, relying solely on Mr. Al Amin’s untested suspect interview, which was admitted without cross-examination, prior notice, or sufficient reliability, while ignoring more relevant evidence such as the testimony of Al Jadeed’s online manager. On mens rea, it argued that the Judge wrongly inferred Ms. Al Khayat’s knowledge of the Order and reversed the burden of proof by relying on circumstantial evidence when alternative explanations (e.g., the email being missed or filtered) were equally plausible. It also claimed the Judge failed to consider her suspect interview and placed undue weight on the Cease-and-Desist Letter and Al Jadeed’s response, which did not establish intent to violate the Order.

As to Al Jadeed, the Defense rejected the Prosecutor’s challenges to the Judge’s application of Lebanese law under Article 210 LCC, arguing that Lebanese law was correctly applied given the domestic context, the lack of international norms on corporate criminal liability, and prior Appeals Panel reliance on Lebanese law. Finally, the Defense argued that Ms. Al Bassam’s conduct could not be attributed to Al Jadeed because, as Head of News, she lacked legal authority to bind the company, which was formally represented only by its Chairman.

Ahead of trial, the Tribunal rejected the Committee to Protect Journalists’ request to participate as amicus curiae, following submissions from the parties.

The Tribunal proceeded to trial based on two counts of contempt. Under Count 1, the Accused were charged with knowingly and willfully interfering with the administration of justice by broadcasting information on alleged confidential witnesses in the Ayyash et al. case, potentially undermining public confidence in the Tribunal’s ability to protect witness confidentiality.

The Appeals Panel examined both constituent elements of the offense: the actus reus and the mens rea. The Panel first addressed the actus reus element, upholding the Contempt Judge’s definition of the legal standard under Rule 60 bis (A) as “objective likelihood,” requiring proof beyond reasonable doubt that a reasonable person would have their confidence in the Tribunal undermined by the Episodes. It rejected the Prosecutor’s proposal to adopt a lower “real risk” threshold, under which it would be sufficient to show that the Episodes created a risk of undermining public confidence, without proof that such an effect actually occurred. However, the Panel found that the jurisprudence cited did not support this position. Several cases (e.g., Marijačić and Rebić, Hartmann, Haxhiu) only used the “real risk” formulation when considering sentencing or policy issues, not when defining actus reus. Other authorities, including the Worm judgment and ICTY decisions in Šešelj and Margetić, did not establish that “real risk” was the correct standard for contempt offenses. Accordingly, the Panel concluded that the Prosecutor failed to show that the Contempt Judge erred in applying the “objective likelihood” standard.

Second, the Appeals Panel addressed the error in proving actual harm, and found that the Contempt Judge rightly did not require proof of actual harm but considered it potentially relevant, though not determinative, in establishing an objective likelihood of undermining public confidence. It therefore concluded that “even if actual harm was proven, it may not by itself be enough to prove this element of the actus reus of Count 1.” [para. 39]

Third, the Appeals Panel considered the alleged error regarding the identifiability of individuals. It observed that the Prosecutor had not demonstrated any flaw in the Contempt Judge’s reasoning, who had already found three individuals identifiable from the Episodes, thereby satisfying that element of the actus reus standard. In any event, the issue was rendered moot, as the first two elements of actus reus were not established, and thus the identifiability finding had no impact on the outcome.

On the mens rea element, the Appeals Panel held that, since the actus reus had not been proven beyond reasonable doubt, arguments on mens rea were immaterial. It therefore upheld the acquittals of both Al Jadeed and Ms. Al Khayat on Count 1.

Under Count 2, the Accused were charged with knowingly and willfully interfering with the administration of justice by failing to remove content concerning purported confidential witnesses from Al Jadeed’s website, YouTube channel, and Facebook page, in violation of the August 10, 2012 Order. The Tribunal considered the convictions of Ms. Al Khayat and Al Jadeed separately.

Regarding Ms. Al Khayat, the Appeals Panel examined both constituent elements of the offense, namely the actus reus and the mens rea. As to the actus reus, it reviewed the Contempt Judge’s findings on the availability of the Episodes across three platforms: Al Jadeed’s website, YouTube channel, and Facebook page, addressing each in turn.

The Appeals Panel first addressed whether the Contempt Judge erred in finding that the Episodes remained accessible on Al Jadeed’s website after the August 10, 2012 Order. The Contempt Judge had relied primarily on the untested hearsay of Mr. Al Amin’s suspect interview, corroborated in part by Mr. Comeau’s testimony, a witness. This led to two intervals: (i) availability until April 25, 2013, based on both Al Amin and Comeau; and (ii) availability between April 25 and October 2, 2013, based solely on Al Amin’s uncorroborated statement. For the first interval, the Appeals Panel held that the Contempt Judge acted within his discretion in treating Mr. Comeau’s hearsay evidence as sufficient corroboration, and thus upheld the finding of availability until April 25, 2013. However, for the second interval, the Panel found that relying exclusively on untested hearsay without corroboration was unreasonable. Since uncorroborated hearsay cannot constitute the sole or decisive basis for proving an element of the offense, the Panel reversed the finding of availability between April 25 and October 2, 2013.

The Appeals Panel then examined whether the Contempt Judge erred in his findings on the Episodes’ availability on Al Jadeed’s YouTube channel. The Panel agreed with the Prosecutor’s submission that since Agreed Fact 21 established that the Episodes were embedded on Al Jadeed’s website from its YouTube channel, a finding of availability on the website necessarily meant availability on YouTube. The Appeals Panel ruled that the Contempt Judge failed to consider this agreed fact, despite its relevance, and held that no reasonable trier of fact could have ignored its probative value. It therefore concluded that the Episodes were available on YouTube for the same period as on Al Jadeed’s website, namely until April 25, 2013. As to availability beyond that date, the Panel reviewed various pieces of evidence relied on by the Prosecutor. It dismissed untested hearsay, such as the 2014 broadcast, the Registrar’s 2012 letter, and Al Khayat’s suspect interview, as either irrelevant, unreliable, or not relied upon at trial. It further found no error in the Judge’s requirement that Mr. Comeau’s hearsay evidence, which suggested the Episodes’ availability until September 2013 or even January 2014, be corroborated, noting that no such corroboration was established. Accordingly, the Appeals Panel held that the Contempt Judge erred in rejecting availability on YouTube up to April 25, 2013, but upheld his finding that availability beyond that date was not proven.

The Appeals Panel finally considered whether the Contempt Judge erred in declining to find that the Episodes were available on Al Jadeed’s Facebook page after the August 10, 2012 Order. The Panel found that the cited suspect interviews, the 2014 broadcast, the staff’s alleged failure to deny availability, and the screenshots, lacked probative value or insufficient provenance. The Panel found that the Contempt Judge did not err in declining to rely on these pieces of evidence. Mr. Al Amin’s interview addressed only general posting practices and did not provide direct proof of the Episodes being on Facebook beyond August 10, 2012. Ms. Al Khayat’s interview and the broadcast of April 29, 2014 were either hearsay or irrelevant to the dates in question. The alleged failures of Ms. Al Bassam and Ms. Habli to deny the Episodes’ availability were similarly insufficient to establish proof, as they were not asked specific questions on the matter and were not interviewed at trial. Regarding the screenshots, the Panel noted that Mr. Comeau, who facilitated their admission, could not provide information on their provenance or the circumstances under which they were obtained. Consequently, these screenshots could not serve as reliable evidence. The Table of Agreed Facts was also considered irrelevant because none of the agreed facts addressed the Episodes’ availability on Facebook beyond August 10, 2012. For these reasons, the Panel confirmed the Contempt Judge’s finding that the Prosecutor had not proven, beyond reasonable doubt, that the Episodes were available on Al Jadeed’s Facebook page beyond August 10, 2012.

On the mens rea element, the Appeals Panel examined the Contempt Judge’s finding that she first received Mr. Lodge’s August 11, 2012 email attaching the August 10, 2012 Order, and second, that she was at least willfully blind to the Order. The Contempt Judge, finding no direct evidence of Ms. Al Khayat’s knowledge of the August 10, 2012 Order, relied on circumstantial evidence to infer receipt and mens rea. This included (i) the use of the same email address in prior correspondence with the Tribunal’s spokesperson, (ii) the testimony of Mr. Lodge, Head of Registry and Resident Representative at the Tribunal’s Beirut office, that he received no failed delivery notification, and (iii) the absence of evidence indicating any malfunction of Al Jadeed’s server or Ms. Al Khayat’s inbox on August 11, 2012. Based on this evidence, the Judge concluded that the only reasonable inference was that Ms. Al Khayat received the email in her inbox.

The Panel emphasized its deference to the Contempt Judge’s factual findings but applied a standard of reasonableness. It recalled that, when circumstantial evidence is used to infer facts constituting an offense, the inference must be the only reasonable conclusion from the evidence. On review, the Panel found that the Contempt Judge erred in concluding that receipt in the inbox was the only reasonable inference. Other plausible inferences could have been drawn, such as (i) the email, though sent successfully, not reaching her inbox without triggering a notification, or (ii) the email being routed to another folder (e.g., “Junk Email”), meaning it may not have come to her attention despite her accessing other emails. Therefore, the Panel held that the Contempt Judge’s finding violated the principle of in dubio pro reo (when in doubt, rule for the accused) and the requirement that material facts be proven beyond reasonable doubt. Since alternative reasonable inferences existed, Ms. Al Khayat’s receipt of the email was not proven beyond reasonable doubt. Consequently, the Panel reversed the Contempt Judge’s finding on mens rea, overturned Ms. Al Khayat’s conviction on Count 2, and set aside the 10,000 Euro fine imposed.

Regarding Al Jadeed’s conviction, the Appeals Panel began with reviewing how criminal liability may be attributed to legal persons. The Panel affirmed the application of Lebanese law, specifically Article 210 (2) of the LCC, which holds legal entities liable for acts of directors or employees acting on their behalf or using their means. While agreeing with the Contempt Judge’s conclusion and his reliance on Lebanese Court of Cassation holding in Criminal Chamber 6, No. 4/2007 (Jan. 11, 2007) and Criminal Chamber 3, No. 163/2004 (May 19, 2004), the Panel noted that it would have been preferable for the Contempt Judge to have considered the sources listed in Rule 3 in order of precedence before turning to other sources. In this context, the Panel agrees with the Contempt Judge that there is no relevant international convention, customary law, or general principle of law governing corporate liability on which to rely. The Panel noted that Al Jadeed is a legal person registered and operating in Lebanon. It is foreseeable under Lebanese law that the owner of a journalistic publication or television station may be a legal person and could be held criminally liable. Accordingly, the Panel finds that the elements for attributing criminal liability to legal persons are found in Article 210 of the LCC and were foreseeable to Al Jadeed.

Furthermore, the Panel underlined that the Contempt Judge applied the legal test for attributing criminal liability to a legal person and did, in fact, identify Ms. Al Khayat as a natural person who had committed the relevant criminal conduct. The Judge subsequently concluded, however, that her conduct could not be attributed to Al Jadeed because she lacked the authority to act on the legal person’s behalf. Consequently, Al Jadeed’s acquittal on this count did not turn on the inability to identify a single natural person (the element challenged by the Prosecutor), but rather on the separate requirement that the identified person must have had authority to act on behalf of the legal person. With respect to the Prosecutor’s alternative argument, that the offense may be aggregated across multiple natural persons within the legal person, the Panel found that the Prosecutor has not shown: (i) who these natural persons would be in this case or how they collectively shared the actus reus and mens rea of Count 2; or (ii) how the requirements of Article 210 of the Lebanese Criminal Code, namely that the persons must have the authority to act on behalf of the legal person, would be satisfied collectively. The Panel therefore ruled that the Prosecutor has not established that, even if this alleged error had occurred, the Contempt Judge would have reached a different conclusion on Al Jadeed’s criminal responsibility. In conclusion, the Panel dismissed this part of the Prosecutor’s submission in its entirety.

The Appeals Panel additionally evaluated the Contempt Judge’s finding that: (i) he could not determine beyond reasonable doubt that Ms. Al Bassam, Al Jadeed’s Head of News and Political Programs, who was a management member of the news department, had the ability to remove the Episodes from Al Jadeed TV’s online platforms; and (ii) consequently, he could not find that Ms. Al Bassam had violated the August 10, 2012 Order. The Panel noted that the Contempt Judge has broad discretion to assess the reliability and probative value of evidence presented at trial. The mere fact that she was responsible for the news bulletin does not automatically establish that she possessed the authority or means to remove the content. The Panel ruled that given that the Contempt Judge reasonably concluded that Ms. Al Bassam did not violate the August 10, 2012 Order, the question of whether her conduct could trigger Al Jadeed’s criminal liability became moot. Accordingly, the Appeals Panel confirmed Al Jadeed’s acquittal on Count 2.

In conclusion, the Appeals Panel, acting under Rule 60 bis (M) and Rule 188, upheld Ms. Al Khayat’s acquittal on Count 1 and Al Jadeed’s acquittal on both counts, and reversed the former conviction under Count 2, setting aside her €10,000 fine.

Dissenting Opinion

Judge Nosworthy issued a partial dissent concerning Count 2, focused on the acquittal of Al Jadeed as a legal person. She disagreed with the majority’s outcome, confirming the Contempt Judge in finding that Ms. Al Bassam lacked the ability to remove the Episodes from Al Jadeed’s online platforms. In her view, Ms. Al Bassam had knowledge of the August 10, 2012 Order, the ability to remove the Episodes, and failed to do so. She also disagreed with the application and interpretation of Article 210 of the Lebanese Criminal Code (LCC) as applied to the attribution of Ms. Al Bassam’s acts to Al Jadeed. Judge Nosworthy concluded that Al Jadeed should have been convicted on Count 2 based on Ms. Al Bassam’s conduct.

It is an agreed fact that Ms. Al Bassam was the Head of News and Political Programs, with Ms. Al Khayat as her deputy. She was duly notified of the Order, signing the report of service on August 14, 2012. She either had actual knowledge or was willfully blind to the Order, and Mr. Dsouki, Al Jadeed’s online manager, confirmed that he took instructions from both Ms. Al Bassam and Ms. Al Khayat. Given this evidence, Judge Nosworthy finds it unreasonable to conclude that Ms. Al Bassam lacked the ability or authority to remove the Episodes. Even if Ms. Al Khayat had direct responsibility for broadcasting the Episodes, Ms. Al Bassam, as her superior and Head of News, retained ultimate authority to direct actions, including removal of content from online platforms. Consequently, it defies logic to find that Ms. Al Khayat could remove the Episodes while her superior, Ms. Al Bassam, could not.

Judge Nosworthy further agreed that Lebanese law (Article 210 of the LCC) applies for attributing the acts of natural persons to legal persons, but she disagreed with the Contempt Judge’s restrictive application. Article 210 provides that legal persons are criminally responsible for actions of directors, members of administration, representatives, and employees when such actions are undertaken on behalf of or using the means provided by the legal person. Ms. Al Bassam’s acts or omissions satisfy the conditions for Al Jadeed’s criminal liability under Article 210. She held the position of “director” within the meaning of Article 210 and acted on behalf of Al Jadeed when signing the report of service. The Lebanese authorities served the Order on her in this capacity, recognizing her authority to act for Al Jadeed.

Alternatively, her conduct can also be attributed to Al Jadeed as an “employee” acting within her duties and using the company’s means. Lebanese jurisprudence demonstrates that explicit authorization is not always required; routine duties performed with the organization’s means can suffice to engage corporate liability. Examples include: Decision 217/2011, where a hospital was held liable for negligent acts of doctors acting within their routine functions using hospital resources and Al Jadeed itself being found liable under Lebanese electoral law for a journalist’s broadcast without proof of explicit authorization.

Therefore, the Contempt Judge erred in concluding that Ms. Al Bassam did not violate the August 10, 2012 Order and that her conduct did not trigger Al Jadeed’s liability. The acquittal constituted a miscarriage of justice.

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