Defamation / Reputation
Afanasyev v. Zlotnikov
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The English High Court dismissed defamation proceedings against a Portuguese publisher as an “abuse of process” on the basis that the Plaintiff had not suffered serious harm in the jurisdiction and had dropped parallel proceedings in Portugal where his reputation had already been vindicated. Alvaro Sobrinho had issued proceedings in England claiming that he had suffered harm despite limited circulation of the article in the jurisdiction. He subsequently issued proceedings in Portugal but dropped these following a Parliamentary Inquiry into the subject matter of his claim – the collapse of Banco Espirito Santo (“BES”) – which he said had cleared his name. The Court reasoned that Mr. Sobrinho had failed to prove that serious harm occurred in the English jurisdiction and that the complaint was an “abuse of process” because it served no legitimate purpose and was “not worth the time, effort and expense” of pursuing.
On June 7, 2014, Expresso, a weekly newspaper, published an article claiming that Alvaro Sobrinho was incompetent in his role at Banco Espirito Santo Angola (“BESA”), the Angolan subsidiary of Portuguese bank BES. The article alleged that Mr. Sobrinho had allowed the bank to loan approximately USD $5.7 billion to unknown borrowers and that there was reason to suspect he had fraudulently misappropriated millions of dollars from BESA. Some 90,000 copies of the article were circulated across Portugal and about 126 copies in England and Wales. The article was also available online in both English and Portuguese. (Note: a copy of the article can be found in the decision, paragraph 26). Mr. Sobrinho initially wanted a published retraction and a formal apology but, following communications between the parties, he commenced lawsuits in both England and Portugal.
He issued libel proceedings against Impresa Publishing SA, the entity that owns Expresso, in England in July 2014. On September 5, 2014, Impresa filed a motion to strike the English complaint.
Meanwhile, in Portugal, Mr. Sobrinho commenced a criminal libel complaint which the public prosecutor decided not to pursue. On February 5, 2016, Mr. Sobrinho issued a civil lawsuit in Portugal requesting $500,000 Euros in damages. In April 2016, the Portuguese Parliament held an inquiry into the collapse of BES. After the hearings, Mr. Sobrinho dropped his civil suit in Portugal claiming that public interest in the Parliamentary Inquiry, as well as the results of the hearings themselves made the point of the proceedings moot as he had “achieved all that [he] could expect to have achieved through proceedings [in Portugal].” Mr. Sobrinho believed that the results of the inquiry had cleared his name.
Impresa claimed the action in England should be dismissed because the circulation of the article in England and Wales was minuscule and because Mr. Sobrinho had discontinued proceedings in Portugal where the proceedings were more appropriate. Mr. Sobrinho argued that he had a reputation as a philanthropist and chairman of the Board of Trustees of the Planet Earth Institute (“PEI”), a London-based charity registered in England, to protect and that his decision to discontinue the proceedings in Portugal was reasonable and appropriate.
A preliminary hearing was held early December 2015.
Justice Dingemans presided over the preliminary hearing during which he considered the meaning of the article, the requisite standard of harm, and whether the claim overcame the “abuse of process” burden.
Firstly, J. Dingemans said that, in order to determine the meaning of the allegedly defamatory words, the Court must consider how a layman would interpret the words, look at the overall meaning conveyed by the entire article (not just a headline or section), and decide whether the interpretation was reasonable. He said that the Court was not limited to the meanings presented by the parties and could come to its own conclusion regarding the meaning. He applied the rule in Chase v. News Group Newspapers  EMLR 11 to establish whether the article meant that Mr. Sobrinho had fraudulently misappropriated funds. “A Chase level 1 meaning is to the effect that the person has committed a wrongful act. A Chase level 2 meaning is that there are “reasonable grounds to suspect” that the person committed a wrongful act, and a Chase level 3 meaning is that there are “reasonable grounds to investigate” whether the person committed a wrongful act”. Mr. Sobrinho argued that the meaning of the article was a Chase level 2 meaning, namely that “there are reasonable grounds to suspect that he did so fraudulently” while Impresa argued that the meaning of the words was that claims “required investigation to establish their legitimacy.”
J. Dingemans then addressed the translation issue and, with the help of expert evidence, established that the word “Saque” in the article’s headline,¨Saque no Besa,” most closely translates to “pillaging” which might imply some kind of illegality depending on the context of the article. J. Dingemans subsequently found that the implication of the article was that “there are reasonable grounds to suspect that Mr. Sobrinho granted suspect loans for the benefit of himself, his family and many companies under his control fraudulently.” He reached this finding by both reading the article as a whole and noting the following specific statements: “shady conduct for a bank manager,” “there are no innocent parties. Only guilty ones,” and “But in many cases, we are not talking only about incompetence.”
J. Dingemans then ran through the relevant sections of the Defamation Act 2013 and case-law relating to serious harm. He said that the serious harm test had crystallised into two key uncontroversial propositions, firstly that the test requires the claimant to prove as a fact, on the balance of probabilities, that the statement complained of has caused or will probably cause serious harm to the claimant’s reputation. Injury to feelings alone is not sufficient. Secondly, the claimant can call evidence in support of his case on serious harm, and the defendant can similarly call evidence to demonstrate that no serious harm has occurred or is likely to occur. The Court is entitled to draw inferences on the admitted evidence – mass media publications of a very serious defamatory allegation are likely to obviate the need for evidence of serious harm. However, this does not mean that serious harm is merely a ‘numbers game’ and very serious harm to reputation can be caused by the publication of a defamatory statement to just one person.
Further, the Judge said that although damage to an individual’s reputation could have begun before publication, for example by word of mouth, this is generally dismissed as too speculative. He added however that courts should be aware to the possibility of further publications which could be considered as “natural, provable and perhaps even intentional results of the publication sued upon”.
The Judge could not identify a precise reason why no serious harm had occurred to Mr Sobrinho’s reputation in England and Wales, but cited a number of possibilities, notably the the limited extent of publication and its effect in England and Wales. He calculated that despite the article being accessed over 500 times, only 55 people read the article in its entirety. Even considering the additional 215 more readers indicated in the proposed amended complaint, the Judge said that these numbers were not high enough to constitute the establishment of serious harm by publication in England and Wales. Equally important was the vindication of Mr Sobrinho’s reputation in Portugal. Mr Sobrinho’s witness evidence stated that “as a result of the public inquiry in Portugal and the coverage it received” he felt “that I have achieved all that I could expect to have achieved through proceedings there, perhaps more“ and the Judge said that the evidence showed that that coverage of the Parliamentary inquiry was available in England in the same way that the Expreso article had been available in England. This meant that if his reputation had been restored in Portugal, it must also have been restored in England and Wales. In these circumstances, he found that Mr. Sobrinho did not experience serious harm nor it was it possible for him to experience serious harm in the future.
Finally, J. Dingemans applied the Jameel test which requires the court to stop defamation proceedings which serve no legitimate purpose, that is, “whether a real and substantial tort” has been committed. The test balances the serious harm caused in the jurisdiction aganist the court’s resources. Given that no serious harm had been caused and that Mr Sobrinho’s reputation had so effectively been restored by the Parliamentary inquiry in Portugal, the pursuit of the claim in England and Wales was a Jameel abuse of process and “not worth the time, effort and expense”.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression by highlighting that strong evidence is required to show that serious harm to the reputation of the claimant has occurred or is likely to occur, and especially in circumstances where circulation of the defamatory publication in England and Wales has been relatively limited. Further, the Court affirmed the “abuse of process” test stating that “[a]pplications to dismiss proceedings as an abuse of process help to ensure that actions which do not serve any legitimate purpose are not pursued and that there is not disproportionate and unnecessary interference with freedom of expression.”
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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