Defamation / Reputation
Commonwealth v. Pon
Closed Contracts Expression
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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.
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.
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:
On this, the Claimant gave evidence in his witness statement dealing substantively with each of the charges made in the broadcasts complained of.
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.)
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.,  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  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:
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.
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.
The Court ruled in favor of the Claimant on the libel claims and awarded damages of £185,000. It dismissed the harassment claims.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression in circumstances where the Defendant broadcaster by its own admission said it would be unable to pass a “responsible journalism” test.
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