(1) ARAB NEWS NETWORK (2) SOUMAR AL ASSAD v (1) JIHAD AL KHAZEN (2) AL HAYAT PUBLICATIONS LIMITED [2001] EWCA Civ 118

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF
JUSTICE QUEEN'S BENCH DIVISION
Morland J.
[2001] EWCA Civ 118Case No QBENI/2000/2028/A2Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Friday 2 February 2001
Between
(1) ARAB NEWS NETWORK (2) SOUMAR AL ASSADAppellants(1) JIHAD AL KHAZEN (2) AL HAYAT PUBLICATIONS LIMITEDRespondents
Before
Lord Justice Peter GibsonLord Justice ChadwickLord Justice KeeneMr G Shaw Q.C. & Miss L Skinner (instructed by Messrs Montague Lambert & Company of London W5 2NX for the Appellants)Mr R Rampton Q.C. & Mr R Elliott (instructed by Messrs Linklaters of London EC2Y 8HQ for the Respondents)Date 2 February 2001

LORD JUSTICE KEENE:

This

[1]is an appeal by the claimants in proceedings for libel against a decision by Mr Justice Morland dated 28 March 2000 that the words complained of were not capable of bearing the meanings alleged or any meaning defamatory of the claimants. He struck out the claim under the Civil Procedure Rules, Part 3.4(2)(a) and Schedule 1, rule 82.3A(2).[2]The second claimant is the nephew of the late President Hafed Al-Assad of Syria. His father is President Assad's brother, who was until his dismissal by President Assad in February 1998 a Vice-President of Syria. The second claimant is also the chairman of the first claimant, a television news broadcasting company based in London but broadcasting in Arabic. The defendants are the former editor-in-chief and the publisher of a daily newspaper written in Arabic known as Al Hayat. That newspaper is published in London and has a circulation in this jurisdiction of about 2,500.[3]The proceedings were based upon the publication by the second defendant and within the jurisdiction of an editorial in Al Hayat on 13 February 1998. The editorial was written in Arabic, but there is a translation of it into English which was agreed for the purposes of the application below and of this appeal. Entitled "Eyes and Ears", the editorial dealt with the dismissal of the second claimant's father as Vice-President, a decision of which it clearly approved, describing it at the outset as "overdue for years". The words complained of are extracts from the editorial, but in accordance with well established principle they are to be read in the context of the editorial as a whole. So far as possible, I shall seek to summarise the editorial, but inevitably much will need to be set out in full.[4]The first paragraph observes that the main reason for the dismissal was the attempt by the second claimant's father, Dr Rifa'at Al-Assad, and the second claimant "to build what seems to be a Syrian opposition from within and outside". The text then continues:
"Although opposition is needed in all countries, Dr Rifa'at Al-Assad's opposition aroused a lot of anxiety inside Syria and abroad because it has been leaked that the vice-President has been critical of the pan-Arab line of President Al-Assad, and has called for yielding and reaching an agreement with Israel at the expense of others. Such statements may not be taken literally, for they could be just "venting of frustration"
. But President Al-Assad has built all his political reputation on his pan-Arab firmness, and his refusal to give away any Arab right, to the extent that he would wage war against the squanderers. So, the President's decision has lifted a heavy burden off the chest of every patriot who maintained an embarrassed silence because Dr Rifa'at Al-Assad is the President's brother, and because we know that America and Israel are looking for an aide-de-camp, or agent to say the least, in Syria, after Hafez Al-Assad foiled their ambitious desires all along." The second half of that last sentence, beginning with the words "we know that America and Israel ..." and continuing to the end of the sentence are among the words complained of.[5]After referring to President Assad's patience, the editorial refers to certain actions by Dr Rifa'at Al-Assad and to the closing by the Syrian authorities of a restaurant in Damascus used by the second claimant as a meeting place. Then, according to the text, the second claimant:
"... left Damacus, via Cyprus, to London. He established the Arab Peoples Democratic Party, issued "
Al-Shaab Al-Arabi" magazine, and set up ANN television station in London." The final sentence there is part of the words complained of.[6]Various references then follow to steps taken by President Al-Assad in respect of both his elder brother and the second claimant's father at a time when the President had to go into hospital. The final three paragraphs, apart from the first sentence, constitute the remainder of the words complained of. Including the first sentence those paragraphs read as follows:
" If all this was purely internal matter, then the decision of President Hafed Al-Assad to relieve his brother from the post of vice-President remains a correct decision which should have been taken years ago. Dr Rifaat Al-Assad's excessive actions in the country have made all pan-Arab enthusiasts worried, in particular his strange talk of a possible future relationship with Israel which is in stark contrast with all known convictions of the President who now represents the last Arab bastion against the continued American-Israeli assault. Likewise, Arab News Network ANN, run by Dr Soumar Al-Assad from London, has taken up a line vis-a-vis peace negotiations different from the official Syrian line, to say the least. This is not in itself a disgrace. But Dr Soumar Al-Assad has always spoken as an opposition. Moreover, his television station in dealing with Egypt has sought writers and journalists known for being a minority in Egyptian political thinking, who call for truce negotiations with Israel, and make contacts with it that go beyond the limits that the government of Egypt has drawn for itself. Therefore, President Al-Assad, in a step that must have been painful for him personally, for family considerations, has protected the Arab cause from a looming future threat and from American and Israeli schemes contrived together with weak people. Hopefully he will follow this step of his with other steps to ensure that no conceding opportunists ever have a chance to rule."
[7]The statement of claim pleaded that the words complained of were defamatory both in their natural and ordinary meaning and because of an innuendo. Paragraph 5 sets out the natural and ordinary meaning relied on, namely that:
"...the Plaintiffs were willing tools or agents of the Israelis and Americans, contriving in their schemes to undermine the pan-Arab cause; and thus, that the Plaintiffs constituted a looming future threat to the Arab cause, from which it needed protection, and were guilty of grave disloyalty to the Arab nation of which they were a part."
The further meanings alleged by way of innuendo are to be found in paragraph 6 of the statement of claim. They are:
"(1) that the Plaintiffs and each of them had caused or permitted the political agenda which they espoused or were pursuing as set out at paragraph 5 above, to influence or affect the First Plaintiff's television broadcasts in breach of the obligations owed by the First Plaintiff of due impartiality, political objectivity and neutrality; (ii) that the Plaintiffs had thus deceived or sought to deceive advertisers and potential advertisers and subscribers and potential subscribers to the First Plaintiff's broadcasts by advertising the First Plaintiff as politically objective and neutral."
[8]There is no doubt that in defamation proceedings the meanings which the words complained of are capable of bearing are to be determined by the judge. If one or more of those meanings so identified can reasonably be regarded by a jury as defamatory, then the matter goes to the jury, which will determine the actual meaning of the words as a question of fact: see Lewis v Daily Telegraph Limited [1964] AC 234 and Keays v Murdoch Magazines Limited [1991] 1 WLR 1184.[9]That provides the context for the task faced by a judge on an application as to meaning in such proceedings. That task was described by Hirst L.J. in Mapp v News Group Newspapers Limited [1998] QB 520 at 526 E-F as being:
"To evaluate the words complained of and to delimit the range of meanings of which the words are reasonably capable, exercising his own judgment in the light of the principles laid down in the above authorities and without any Order 18, rule 19 overtones. If he decides that any pleaded meaning falls outside the permissible range, it is his duty to rule accordingly. It will, as is common ground, still be open to the plaintiff at the trial to rely on any lesser defamatory meanings within the permissible range but not on any meanings outside it."
[10]The authorities being referred to there by Hirst L.J. were Lewis v Daily Telegraph Limited , a House of Lords decision, Jones v Skelton [1963] 1 WLR 1362 , a Privy Council case, and Morgan v Odhams Press Limited [1971] 1 WLR 1239, another House of Lords decision.[11]In short it is for the judge to determine what falls within the spectrum of meanings of which the words are capable. He will also have to decide whether any of those meanings are capable of being regarded by a reasonable jury of being defamatory. Often those two issues will be run together in the course of deliberation, and sometimes only one of them will be a matter of dispute. But they are different issues, as was made clear by Lord Reid in Lewis v Daily Telegraph Limited (ante). Lord Reid noted that it was the Judge's duty to rule on whether the words were capable of having a libellous meaning, and then he added at pp. 258 - 259: "Here the controversy is in a different form. The respondents admit that their words were libellous, although I am still in some doubt as to what is the admitted libellous meaning. But they sought and seek a ruling that the words are not capable of having the particular meaning which the appellants attribute to them. I think that they are entitled to such a ruling and that the test must be the same as that applied in deciding whether the words are capable of having any libellous meaning".[12]In the present case it is not in dispute between the parties that these are two separate issues. But it is helpful to recognise their distinct nature before addressing the questions which arise in these proceedings. In particular, it is to my mind quite clear that the judge in the court below concluded that the words in the editorial complained of were incapable of having any of the pleaded meanings, whether as their natural and ordinary meaning or by way of innuendo. Having referred to Hirst L.J.'s words in Mapp , cited earlier, he went through the various passages relied on. Of the first passage relied on, he concluded that it would be straining the meaning of the words beyond a reasonable length to suggest that what was being said was that the second claimant was or might be an agent with his father for America or Israel nor could he find such a meaning in the second passage. He went through the concluding three paragraphs in the editorial and reached the conclusion that:
"No reasonable and ordinary reader could come to the conclusion that the defamatory meanings pleaded are the message or the messages being sent out by the editorial."
[13]He made it clear that that was his judgment in respect both of the meaning pleaded in paragraph 5 of the Statement of Claim and of the meaning by innuendo in paragraph 6.[14]That is worth emphasising because elsewhere in his judgment, Morland J. expresses his views on how the issue of "defamatory or no" is to be approached, and in particular whether one can have regard to a lowering of reputation amongst part of society, such as the Arab or Arab-speaking community, rather than amongst society generally. On this the judge quoted the often-cited words of Greer L.J. from Tolley v Fry [1930] 1 KB 467 at 479: "Words are not actionable as defamatory, however much they may damage a man in the eyes of a section of the community, unless they also amount to disparagement of his reputation in the eyes of right thinking men generally".[15]It is right that Morland J. then observed that for an Arab broadcasting company to be accused of being a tool of Americans or Israelis by pedalling their line would be highly damaging in their trading reputation and that the second claimant would be highly damaged in his reputation among his fellow Arabs and particularly injured in his feelings. It seems that that passage was directed solely to showing how such factors could be relevant to any future issue of damages which might arise and was not intended to indicate any departure on the judge's part from the approach indicated by Greer L.J. But in any event, it is indisputable that the judge concluded that the pleaded defamatory meanings did not come within the range of meanings attributable to the words complained of. That denotes the first issue in this case. Although most of the oral argument before us focused on the second issue, namely whether any of the meanings were capable of being seen as defamatory, it is logical and necessary to take the issue of meaning first.[16]On behalf of the claimants it is submitted that the judge erred on this aspect of the case. Mr Shaw QC argues that the reference towards the end of the editorial to "weak people" must be capable of being read as a reference to the second claimant and his father, with whom American and Israeli schemes were contrived. On the basis of the natural and ordinary meaning of the words complained of, it is contended that to say that President Assad by dismissing his brother "has protected the Arab cause from a looming future threat and from American and Israeli schemes contrived together with weak people" is capable of being understood by a reasonable reader of this newspaper as meaning that both Dr Rifa'at and the second claimant were acting as willing tools or agents of the Israelis and Americans to undermine the pan-Arab cause. If so, that would be seen as grave disloyalty to the Arab nation.[17]As for the meaning by way of innuendo, the claimants base this principally on the sentence which refers to their television station having sought writers and journalists known for being a minority in Egyptian political thinking, who call for truce negotiations with Israel and make contacts with it that go beyond the limits that the government of Egypt has drawn for itself. Mr Shaw emphasises that the Independent Television Commission Code requires impartiality of a broadcasting organisation and he contends that the editorial by referring to the seeking out of minority writers and journalists is capable of conveying the impression that the claimants were not being impartial. That is said especially to be so, because that paragraph in the editorial implies that such behaviour is a disgrace.[18]On this first issue of the meanings of which the words are capable, Mr Rampton QC, for the defendants, contends that it is contrived to suggest that the natural and ordinary meaning of the words could embrace the meaning pleaded in paragraph 5 of the statement of claim. He points out that the article is largely about the second claimant's father, rather than the second claimant himself, and that it is the dismissal of Dr Rifa'at Al Assad which is being referred to in the final paragraph when it speaks of President Assad protecting the Arab cause. Nowhere, it is said, does the editorial allege or infer that the first or second claimants have been involved in American or Israeli schemes. As for the innuendo pleaded, the defendants argue that no such meaning can be found in the editorial. The I.T.C. Code requires "due impartiality", not absolute neutrality on political issues, and seeks the reporting of different views. The editorial in the words complained of does not state or infer that the claimants are failing to do that, but merely says that the A.N.N. takes a different line from the official Syrian one on peace negotiations and has sought writers and journalists who represent a minority viewpoint in Egypt. That is not capable of being understood as an allegation of breaking the I.T.C. Code. If that is right, then, says Mr Rampton, the second alleged innuendo about deceiving advertisers cannot fall within the range of reasonable meanings because that in its turn depends on the first alleged innuendo.[19]The principles to be applied by a court on this first issue have been the subject of helpful formulation by this court in two recent cases, Skuse v Granada Television Limited [1996] EMLR 278 and Gillick v British B roadcasting Corporation [1996] EMLR 267 . In the latter, Neill L.J. drew upon the former decision to spell out in summary form a number of principles to be observed by a judge when determining whether the words complained of were capable of bearing the meanings alleged. It is unnecessary to set those principles out verbatim here. An important part of the approach enshrined in those principles is that a court should not be too analytical or too literal in considering the words used but should put itself in the position of an ordinary reasonable reader or viewer so as to determine the impression which he or she would obtain. That approach needs, of course, some elaboration when the court is dealing with a pleaded innuendo, where it is alleged that extrinsic facts give rise to a particular meaning in the consideration of those who know those extrinsic facts. But I deal first with the meaning pleaded in paragraph 5 of the statement of claim as the natural and ordinary meaning of the words complained of. In so doing it has to be borne in mind that the ordinary reasonable person possessed only of his or her general knowledge may infer a meaning from all the surrounding circumstances which goes beyond the strictly literal meaning of the words used. Moreover, for my part I accept that a judge in deciding what range of meanings the words in question are capable of bearing will need to take account of the audience to whom those words were published.[20]The pleaded meaning in paragraph 5 of the statement of claim centres upon the claimants being willing tools or agents of the Israelis and Americans, in effect colluding in their schemes. Is that a meaning which could reasonably be attributed to the words used, when read in context? There is no express allegation as such in the editorial, but there are both the reference to America and Israel "looking for an aide de camp or agent" in Syria and in the final paragraph the words that President Assad, in effect by his dismissal of the second claimant's father as a Vice-President, "has protected the Arab cause from a looming future threat and from American and Israeli schemes contrived together with weak people".[21]I cannot see that the reference to "American and Israeli schemes contrived together with weak people" is capable of being understood by a reasonable reader to mean that the second claimant or his company have been or are involved in those schemes. In so far as the editorial speaks of America and Israel looking for an agent, that is said to be in Syria, and as the editorial acknowledges the second claimant had left Syria and was based in London. He could not reasonably be taken to be a person who was being described as potentially fulfilling that role. That is part of the context of the later reference to "weak people".[22]Clearly the editorial is saying that the dismissal of Dr Rifa'at Al Assad has made the prospect of negotiations with Israel less likely and that prevents the Arab cause from being weakened. But whatever might be the position of Dr Rifa'at Al Assad himself, had he been a claimant, I do not accept that the editorial is capable of being reasonably understood to be alleging a personal involvement by the second claimant or his company in American and Israeli schemes. No inference is reasonably possible, as part of the natural and ordinary meaning of the words complained of, that these claimants were willing tools or agents of the Americans or Israelis, colluding with them in their schemes. There is no suggestion in the editorial of any willingness on the part of either claimant to act as such a tool or agent of America or Israel.[23]The court in performing an exercise such as the present one must "reject those meanings which can only emerge as the product of some strained, or forced, or utterly unreasonable interpretation" - see Jones v Skelton , per Lord Morris of Borth-y-Gest, at 1370. Moreover, as has been said several times in the authorities, the court in an exercise such as the present one has to decide what impression the material is capable of having on the hypothetical reader, rather than subjecting it to an artificial and lengthy analysis which does not reflect the way in which it would be read by the normal reasonable person. On that basis it seems to me that the meaning advanced in paragraph 5 falls outside the range of meanings which could be attributed to the words complained of by an ordinary reasonable reader of this newspaper.[24]I have reached the same conclusion in respect of the meanings pleaded by way of innuendo. The statement of claim gave, as required by the then Order 82, Rule 3(1), particulars of the facts and matters relied on to support the meanings by way of innuendo. Those facts and matters consisted simply of the obligation of the first claimant under the I.T.C. Code to present news and matters of political controversy with due impartiality, dispassionately and even-handedly, its description of its broadcasts in its advertising in similar terms, and the knowledge of those facts by a number of readers of the editorial. Nothing further was set out by way of supporting facts and matters.[25]It is pleaded that, given those facts and matters, the words complained of meant that the first claimant, the company, was in breach of its obligations under the Code. Were those words capable of such a meaning to those who were aware of the provisions of the Code? As Mr Shaw recognises, the answer to that question turns on the penultimate paragraph of the editorial. But merely to say, as the first sentence thereof does, that a broadcaster has adopted a different line from the official Syrian line does not indicate a lack of impartiality. To go on, as the paragraph does, to state of the second claimant that "his television station ... has sought writers and journalists known for being a minority in Egyptian political thinking" is wholly incapable of being understood as an allegation of a lack of impartiality or even-handedness. On the contrary it is more a description of an organisation seeking to report more than one view of a politically controversial issue. It is not suggested in the editorial that the television station broadcasts only the views of those in a minority in Egypt on the Israeli issue, but merely that the station has sought out such people, presumably to comment. That may not reflect "the official Syrian line" and it may not have met with the approval of those who wrote and published the editorial in Al Hayat, but it cannot reasonably be seen as an allegation of a lack of impartiality. It may indicate a more balanced approach than that adopted by those who ignore such minority views.[26]In the course of argument, Mr Shaw contended that, while impartiality might be understood by an ordinary citizen of this country as requiring a broadcaster to report more than one side of an argument, an Arab reader might not see the concept in the same way. That cannot be right. The I.T.C. Code makes it quite obvious that the concept of impartiality involves the reporting of opposing views on matters of political controversy, and no reasonable reader, whatever his nationality or race, could conclude that a broadcaster had been in breach of its obligations under the Code by seeking to broadcast more than just the official Syrian line.[27]In short, the editorial undoubtedly disapproves of the behaviour of the television station in this respect, but to construe it as alleging a lack of impartiality in breach of the Code is far fetched and unreasonable. Such a meaning falls outside the spectrum of meanings of which the words are capable.[28]The other pleaded meaning by way of innuendo, namely that the claimants have thus deceived advertisers and subscribers by representing themselves as politically objective and neutral, cannot for similar reasons be allowed to stand. Its dependence on the first innuendo pleaded is evident from the use of the word "thus", and that reflects the reality of the situation. The editorial was simply disapproving of the television station's use of those with a minority viewpoint because that conflicted with the official Syrian line.[29]I conclude that the judge who dealt with this application reached the right decision on whether the words complained of were capable of bearing any of the pleaded meanings or any meaning defamatory of the claimants. They were not so capable, whether on their natural and ordinary meaning or by way of innuendo.[30]That being so, it becomes unnecessary to deal with the other issue raised on this appeal, namely whether any of the pleaded meanings would be capable of being held to be defamatory and whether that is to be judged by the reaction of ordinary reasonable people in our society as a whole or by that of such people within a particular community within that society. We were addressed at some length on this issue but for my part I would only add that I can see considerable difficulties in this court departing from the former of those two approaches, endorsed as it has been in a long series of powerful authorities. The familiar words of Greer L.J. in Tolley v Fry (ante) were not an isolated instance but formed part of a lengthy line of authority and dicta to the same effect. This is not to ignore the fact that we are today a much more diverse society than in the past and that the reputation of a person within his own racial or religious community may be damaged by a statement which would not be regarded as damaging by society at large. This is an issue which may need to be addressed at some stage in the future. I merely note the substantial difficulties, at least in this court, in determining it in the way contended for by the claimants.[31]It should also be noted that in such cases such a statement will often give rise to inferences of disloyalty, hypocrisy or other disreputable conduct - in other words, to inferences which would be regarded as defamatory by ordinary reasonable people in our society as a whole. Such a situation can be seen in Myroft v Sleight [1921] 90 LJKB 883 at 887. However, since this issue does not fall for determination, given the conclusion arrived at on the first issue, I do not propose to deal with it at any greater length.[32]For the reasons given I would dismiss this appeal. CHADWICK L.J.:[33]I agree. PETER GIBSON L.J.:[34]I also agree.

Order

Appeal dismissed with costs. (This order does not form part of the approved judgment)

Cited in 2 later judgments