Case Summary and Outcome

The U.K. High Court ruled in favor of Mir Shakil-Ur-Rahman, Chief Executive of Pakistan’s largest media group, awarding him “top of the bracket” damages of £185,000 in a defamation suit brought against rival network ARY Network Ltd. and its Chief Operating Officer in respect of programs broadcast in the U.K.  Mir Shakil claimed that over a twelve month period the ARY Network mounted a “campaign” of harassment and defamation against him. The Court rejected the harassment claim but found that ARY had failed to establish sufficient defenses for the alleged defamation. The Court said the offending allegations were distinctive and very serious and went to “the core attributes” of the Claimant’s personality. Furthermore, they were published to tens of thousands of people within the U.K. and there had been no withdrawal or apology.

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Facts

The Claimant is the Group Chief Executive of the Pakistani Jang group of companies which operates in the U.K. through Jang Publications Ltd and GEO TV Ltd and commands great traction as an Urdu newspaper. The ARY group is the commercial rival of the Jang group including in relation to Urdu broadcasting in the U.K. and runs a current affairs programme on its TV channel ARY News. The second defendant is the Chief Operating Officer of ARY News and oversees all operational aspects of the business in the U.K.

The Claimant alleges that over a twelve month period from October 2013 the Defendants mounted a “campaign” of abuse and defamation against him. His claim related to defamation (24 programs) and harassment (100 progams).

The Claimant’s allegations were founded on grounds of persistent derogatory references to him, many of them very explicit. For example, the patronising use of the term Babaji to refer to him, singling him out by addressing programs to him and ridiculing his decision not to defend himself.

In November 2015,  in a trial of preliminary issues, Judge Haddon-Cave ruled on the relevant ‘single meanings’ attributable to each of the programs, identifying which words could be categorized as comment and which as fact.

In the case under review the Court had to rule on broadcasts taking place both before and after the Defamation Act 2013 came into effect on January 1 2014.

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Decision Overview

Sir David Eady sitting as a High Court Judge ruled in favor of the Claimant on his defamation claim and dismissed his claim for harassment.

Claimant’s Case: The publications complained of in the 24 broadcasts were very specific and fell broadly into the following categories:

• treason or treachery towards Pakistan;
• covertly conspiring with foreign powers or agencies to damage the interests of Pakistan;
• doing so in return for payment;
• blasphemy;
• destroying or attempting to destroy evidence at the crime scene of the attack on Hamid Mir;
• making threats to Muhammad Ali and authorising the publication of false allegations against him.

On this, the Claimant gave evidence in his witness statement dealing substantively with each of the charges made in the broadcasts complained of.

Defendant’s Case

There were 11 programmes in respect of which the only point taken was that they failed the “serious harm” test under the Defamation Act, having been broadcast in 2014. The substantive defenses of qualified privilege were raised only in relation to the remaining seven programmes. The Court examined each of the remaining programmes individually. (There was no pleaded defense at all in relation to six of the programs.)

Defamation

The Defendants argued that that the claims in relation to those programs broadcast before the Defamation Act 2013 came into force, namely January 1 2014, were liable to be struck out under the Jameel ‘abuse’ doctrine laid down in Jameel (Yousef) v. Dow Jones Inc., [2005] QB 946. They submitted that their publications could not have caused any significant harm to the Claimant’s reputation and sought to show how other publications, in other parts of the world and particularly in Pakistan, were responsible for the damage.

With respect to these submissions the Court laid down that the real objective was to establish that the Claimant’s reputation was so poor that any additional harm occasioned by the broadcasts could be discounted. However, the Court said it was not permitted to introduce damaging publications by others: Dingle v Associated Newspapers Ltd [1964] AC 371. Secondly, a defendant cannot rely on individual acts, or instances of conduct, on the claimant’s part by way of mitigating damage (as opposed to evidence of general bad reputation): Scott v Sampson (1881-82) LR QBD 491. Thirdly, evidence concerning a plea of truth/justification can only be relied upon if it has been pursued at trial which was not the case here since the Court had already struck out these pleas.

The Court said it must try to isolate the damage flowing from the relevant broadcasts in England and Wales and compensate the Claimant only in respect of those matters. On the other hand, the Court stated that it needed to bear in mind the “grapevine effect” that allegations made in programs can have among the community, as they are spread by word of mouth or by means of social media, and cause corresponding damage to the Claimant’s reputation among those who hear about them.

The Defence of Privilege

There were two instances where the defence of privilege was raised by the defendants and rejected by the Court:

• Concerning the broadcast made on 26 October, 2013: Muhammad Ali, who was formerly the chairman of the Pakistan Securities and Exchange Commission, filed a suit in the High Court of Singh alleging that the claimant had published defamatory statements. The Defendants claimed that their coverage of these proceedings was eligible for the protection of statutory privilege under the Defamation Act 1996. However, the program made no mention of the proceedings and, therefore, could not be regarded as a report for this purpose. Instead, the broadcast was in the form of an interview of Mr. Ali with a closing comment from him directly imputing all liability to the Claimant. As for the “material published by a government”, this was apparently a reference to a letter of July 15 2013 addressed to the Prime Minister of Pakistan. However, there was no evidence to suggest that the publication of the letter was authorised by the government or the legislature. The Court also ruled that the interest/ duty privilege would be inapplicable since no such interest could be attributed to the audiences in England and Wales.

• Concerning the broadcast made on 4 November 2013: the Defendants claimed qualified privilege based on “duty and interest” and “reply to attack”. The background was that the Jang group had commenced court proceedings complaining of some of the false and defamatory allegations broadcast in Pakistan in the Khara Sach series by the ARY Group. The Court noted that the duty/interest defense could only be argued in the context of the case of Reynolds v. Times Newspapers [2001] 2 AC 127 which requires the criterion of “responsible journalism” to be addressed which the Defendants said they had deliberately avoided because it was difficult to see how those behind the broadcast could pass that demanding test. The alternative defence relied upon was that of a “reply to an attack”. The statement in such cases should be in response to an attack on the Defendants’ reputation. The Court held that the remarks made during the broadcast about the Claimant couldn’t possibly be interpreted as a reply to an attack because they were in response to the proceedings initiated by Mr. Siddiqui (which did not involve the Claimant). The appropriate response to those proceedings would be by way of defence in the proceedings and not by making derogatory remarks to the world at large.

Compensation for defamation

The Court said that the award must only be in respect of injury to the Claimant’s reputation in the U.K. and caused by the Defendants’ broadcasts. The Court said the offending allegations were distinctive and very serious and went to “the core attributes” of the Claimant’s personality; they were published to tens of thousands of people within the U.K.; in most cases no substantive defense had been put forward and there had been no withdrawal or apology; there were defences of truth/justification on the record until they were struck out which was an aggravating element and the many other broadcasts, relied upon to support the harassment claim, clearly made things worse. The Court said that each case turns on its own facts and that it considered an appropriate award in this case to be £185,000 taking all the above circumstance into account.

Harassment

The Court held that the impact of harassment, unlike defamation, must be felt within the jurisdiction of the relevant statute, in this case the U.K. The Claimant was not in the U.K. at the time of the relevant broadcasts and the Court said that while the suggestion that the victim had to be present in the jurisdiction in order to be harassed was a novel and rather out-dated view, that did not mean that the jurisdictional reach of the Prevention of Harassment Act 1997 had been extended.

Judgement

The Court ruled in favor of the Claimant on the libel claims and awarded damages of £185,000. It dismissed the harassment claims.

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