Jameel & Anor v Wall Street Journal Europe Sprl (No.2) [2005] EWCA Civ 74

“SAUDI OFFICIALS MONITOR CERTAIN BANK ACCOUNTS Focus Is On Those With Potential Terrorist Ties”

“RIYADH, Saudi Arabia – The Saudi Arabian Monetary Authority, the kingdom’s central bank, is monitoring at the request of US law enforcement agencies the bank accounts associated with some of the country’s most prominent businessmen in a bid to prevent them from being used wittingly or unwittingly for the funnelling of funds to terrorist organizations, according to US officials and Saudis familiar with the issue. The accounts – belonging to Al Rajhi Banking & Investment Corp, headed by Saleh Abdulaziz al Rajhi; Al Rajhi Commercial Foreign Exchange, which isn’t connected to Al Rajhi Banking; Islamic banking conglomerate Dallah Al Baraka Group, with $7 billion (8.05 billion euros) in assets and whose chairman is Sheik Saleh Kamel; the Bin Mahfouz family, separate members of which own National Commercial Bank, Saudi Arabia’s largest bank, and the Saudi Economic Development Co; and the Abdullatif Jamil Group of companies – are among 150 accounts being monitored by SAMA, said the Saudis and the US officials based in Riyadh. The US officials said the US presented the names of the accounts to Saudi Arabia since the Sept 11 terrorist attacks in America. They said four Saudi charities and eight businesses were also among 140 world-wide names given to Saudi Arabia last month. The US officials said the US had agreed not to publish the names of Saudi institutions and individuals provided that Saudi authorities took appropriate action. Many of the Saudi accounts on the US list belong to legitimate entities and businessmen who may in the past have had an association with institutions suspected of links to terrorism, the officials said. The officials said similar agreements had been reached with authorities in Kuwait and the United Arab Emirates. “This arrangement sends out a warning to people,” a US official said. SAMA couldn’t be reached for comment. In a recent report to the United Nations about combating terrorism, however, the Saudi government said: “The Kingdom took many urgent executive steps, amongst which SAMA sent a circular to all Saudi banks to uncover whether those listed in suspect lists have any real connection with terrorism.””

“In their natural and ordinary meaning and in the context in which they appeared (including the headlines on the front page and page 4) the said words meant and were understood to mean that the Claimants were reasonably suspected of having terrorist ties and of funnelling funds to terrorist organisations, and had therefore been included on a list of bank accounts which were required by the US law enforcement agencies to be closely monitored by the Saudi Arabian monetary authorities”

“(d) The primary author of the article, James Dorsey, is a distinguished investigative journalist who has covered important financial stories arising from the Middle east for the WSJE since 1993, and for the previous two decades for the United Press International (as Bureau Chief and senior Middle East correspondent) and for The Financial Times, and New York Times. He is a graduate in economics and the author of a book and an encyclopaedia section on the Middle East. He has had connections with Saudi Arabia for the past 25 years and is fluent in Arabic. The article was the kind of news story that he accurately reported throughout his professional career. (e) Mr Dorsey had spent 5 months continuously in Saudi Arabia (living in Riyadh) before publication of the article, investigating stories about Saudi connections with 11 September and al-Qaida. His cultivated sources included Princes of the House of Saud, their officials, bankers (both local and foreign), and diplomats. (f) Mr Dorsey was informed by his sources in the banking community in early December 2001 of the existence of an “off the record” list of bank accounts being monitored at US request by the Saudi Arabian Monetary Authority in consequence of 11 September 2001. This list included at least one account associated with the Abdul Latif Group of companies of which the Second Claimant alleges it is a part. This was confirmed by a highly placed Saudi banking source at the beginning of February 2002. The said account was subsequently confirmed as being on the list by a US diplomat who consulted an official file in the author’s presence before providing this confirmation. The author, notwithstanding the authoritative status of this diplomatic source, made a further check prior to publications with a senior Saudi official, who independently confirmed that said account was on the list. (g) The author and his editors had no reason to believe that any of these sources were other than reliable, and the fact that they corroborated each other made the statement that the said account was on the list extremely reliable. They had no reason to suspect that any of these sources was malicious or self-serving, and none was paid money in return for information. (h) Further investigation of the draft article was undertaken in the US, and no reason emerged to suspect its untruth. (i) The article fairly and accurately reported and presented the news of the bank account monitoring by SAMA and fairly and accurately reported the US government’s reasons for requesting that monitoring. It made clear that its purpose was to send a warning message to banks and businesses, and that many of the Saudi accounts on the list belonged to legitimate entities. The tone of the article was moderate, non-accusatory and unsensational, and entirely appropriate to a straight-forward and significant news story. (j) The reporter was scrupulous in attempting to obtain, prior to publication, a comment from the First Claimant or a spokesperson for the Second Claimant. At about 9am on the day prior to publication a recorded message was left for the First Claimant advising him of the nature of the story and inviting him to call the reporter if he wished to comment. The reporter called again later in the afternoon and spoke to an employee who stated that the First Claimant was overseas and uncontactable, but who refused to provide his mobile number when pressed. This employee refused to comment on the story. He was clearly told of its gist and that it was to be published the following day, and that if the First Claimant or a representative of the second Claimant called the reporter back with any comment then it would be incorporated into the article. He further agreed that in the event that reporter did not receive a call back, the article should simply state that the First and Second Claimants had not commented. No such call was received. (k) Prior to publication of the article, the existence of such a list had been widely and wildly discussed in business circles in Saudi Arabia: speculation that it covered any thousands of accounts was rife. In this context, and given its importance as news its publication on 6 February was justified.”

“The facts reported in the article were true and/or were honestly believed to be true by the WSJE reporter and editors.”

“The plea is of qualified privilege, not of justification. Pursuant to this plea, the Defendant makes no allegation that the Claimants are associated or linked with terrorism”

“(i) In early December 2001, Mr Dorsey was informed by a prominent Saudi businessman that he reliably knew that accounts belonging to some of the country’s most prominent businessman were being monitored by SAMA. The businessman said that his banker had shown him a list of names, accounts linked to whom the bank had been requested to monitor by SAMA. He recalled several names including Abdul Latif Jameel. (ii) Towards the end of January 2002, Mr Dorsey met with the highly placed Saudi banking source. Mr Dorsey asked the source whether he was aware of requests by SAMA to monitor the accounts of certain individuals or institutions. He said he was. Mr Dorsey asked him whether the name of Abdul Latif Jameel was among those accounts. He confirmed that it was. Mr Dorsey asked whether the accounts were personal accounts or accounts associated with businesses. The sources could not provide any more detail. Mr Dorsey asked whether these were the only accounts being looked at. The source said there were more but could not indicate how many. Mr Dorsey asked what monitoring meant, whether the accounts had been frozen or whether it impeded account holders’ transactions. The sources said the accounts were being watched but that account holders were free to do what they wished with their assets. (iii) At the beginning of February 2002, Mr Dorsey met with the senior US diplomat. In the course of their discussion, Mr Dorsey asked whether an account linked to Abdul Latif Jameel was being monitored. The diplomat consulted a file from a cabinet near his desk and said, “yes”. (iv) Later on the same day, Mr Dorsey met the senior Saudi official. Mr Dorsey explained that he had received confirmation of some of the names of accounts being monitored and wanted to get further confirmation. He told the Saudi official the names that he had been given including Abdul Latif Jameel. The source said he believed the names to be accurate.”

“Where a defendant alleges that the words complained of were published on a privileged occasion he must specify the circumstances he relies on in support of that contention”

“9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.”

“where … both sides to a political dispute are being fully, fairly and disinterestedly reported in their respective allegations and responses … it seems to me that the public is entitled to be informed of such a dispute without having to wait for the publisher, following an attempt at verification, to commit himself to one side or the other.”

“19. … The defamatory imputation was a matter of implication. Plainly, there is room for different views on whether the article contained such an implication. Mrs Morris seems to have thought she was not making a statement to this effect in her article. Rather more relevantly and importantly, one of the members of the Court of Appeal was of the same view. Downer JA, on his reading of the article, considered the article carried no such implication. 20. This divergence of view is neither surprising nor unusual. Language is inherently imprecise. Words and phrases and sentence take their colour from their context. The context often permits a range of meanings, varying from the obvious to the implausible. Different readers may well form different views on the meaning to be given to the language under consideration. Should the law take this into account when applying the objective standard of responsible journalism? Or should the law simply apply the objective standard of responsible journalism, to the single meaning the law attributes to the offending words, regardless of how reasonable it would be for a journalist or editor to read the words in a different, non-defamatory sense? ”

“23. Stated shortly, the Reynolds privilege is concerned to provide a proper degree of protection for responsible journalism when reporting matters of public concern. Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of this standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalists pay in return for the privilege. If they are to have the benefit of the privilege journalists must exercise due professional skill and care. 24. To be meaningful this standard of conduct must be applied in a practical and flexible manner. The court must have regard to practical realities. Their Lordships consider it would be to introduce unnecessary and undesirable legalism and rigidity if this objective standard, of responsible journalism, had to be applied in all cases exclusively by reference to the “single meaning” of the words. Rather, a journalist should not be penalised for making a wrong decision on a question of meaning on which different people might reasonably take different views. Their Lordships note that in the present case the selfsame question has resulted in a division of view between members of the Court of Appeal. If the words are ambiguous to such an extent that they may readily convey a different meaning to an ordinary reasonable reader, a court may properly take this other meaning into account when considering whether Reynolds privilege is available as a defence. In doing so the court will attribute to this feature of the case whatever weight it considers appropriate in all the circumstances. 25. This should not be pressed too far. Where questions of defamation may arise ambiguity is best avoided as much as possible. It should not be a screen behind which a journalist is “willing to wound, and yet afraid to strike”

“… Mr Tomlinson rightly accepted that malice does not arise as an independent issue. Matters relating to malice are to be considered in the context of deciding whether the publication attracted qualified privilege in accordance with the common law as developed by the decision of the House of Lords in Reynolds v Times Newspapers Ltd [2001] 2 AC 127.”

“The Reynolds privilege in England now treats considerations which would hitherto have been addressed in the context of malice as part of the question whether the occasion is one of qualified privilege at all. In short, that question, under Reynolds, involves the defendant in showing (1) that the subject matter is of sufficient public concern; and (2) if so, that a significant degree of responsibility has been shown in making the publication.”

“The object of that exercise is to demonstrate to the jury that the central allegation of the article is quite simply wrong, since no such monitoring was taking place, whether of the Claimants or at all.”

“going to the truth or falsity of the article’s central assertion – that the respondents’ accounts are now being monitored by the Saudis”

“ … I should perhaps notice that although, as Eady J observed, in the absence of a plea of justification the law presumes the defamatory words to be false, Mr Robertson was at pains to indicate his unease at that presumption, a presumption which I understood him to suggest may not be compatible with Article 10 of the European Convention on Human Rights.”

“28. … it should be open to the appellant to invite the jury to conclude that the article asserted no reasonable grounds to suspect any actual misconduct whatever on their part and that they were simply being investigated and monitored, first as “a warning to people” (paragraph 4 of the article), and secondly to ensure that they would not in future inadvertently conduct their operations so as to enable terrorists to benefit.”

“ (1) Have the Claimants proved on the balance of probabilities that reasonable readers of the Wall Street Journal Europe (WSJE) in this country who knew of Mohammed Jameel (ie not merely those who knew him personally) would have understood the article to refer to him by implication? Yes (2) If yes, was the article defamatory of him? Yes (3) Have the Claimants proved on the balance of probabilities that there would be reasonable readers of the WSJE in this country who would have understood the article to refer to Abdul Latif Jameel Company Limited? Yes (4) If yes, was the article defamatory of the company? Yes (5) Has the Defendant proved on the balance of probabilities that: (a) James Dorsey was informed by a prominent Saudi businessman (referred to as Source A) in December 2001 that the ALJ group was on an unpublished list of names whose accounts were being monitored by SAMA at the request of the United States? Yes (b) a banker (referred to as Source B) confirmed the above to Mr Dorsey in January 2002? No (c) a US diplomat (referred to as Source C) confirmed the above to Mr Dorsey in the days before publication of the article? No (d) a US embassy official (referred to as Source D) confirmed the above to Mr Dorsey on the same occasion? No (e) A senior Saudi official (referred to as Source E) confirmed the above to Mr Dorsey? No (6) Has the Defendant proved on the balance of probabilities that Mr Dorsey contacted the ALJ offices at about 9am on 5 February 2002 and left a recorded message? No (7) In the telephone conversation in the evening of 5 February 2002 did Mr Munajjed ask Mr Dorsey to wait until the following day for a comment? Yes (8) Subject to the Court’s ruling, in due course, on the defence of qualified privilege: (a) if the answer to questions 1 and 2 is yes, how much would you award by way of damages to Mohammed Jameel? £30,000 (b) if the answer to questions 3 and 4 is yes, how much would you award by way of damages to Abdul Latif Jameel Company Limited? £10,000 ”

“Before I come to the evidence on these issues, which you have to consider, can I just say one or two more things about the general shape of this case. First, if you decide that it is defamatory of one or both claimants, we must all proceed on the basis that any such defamatory allegation is untrue. We take that as a given. The defendants would be entitled to prove the truth of the allegation they have made, and that would, needless to say, always be a complete defence in a libel action. They have chosen not to do that in this case and, therefore, the claimants are entitled to that presumption of innocence. It is not for them to prove anything. Of course, if you do not find that the article defames, then that is the end of the case anyway. We do not get to this stage. If it does reflect in any way in a defamatory sense upon either of them, and you come to the view, after due consideration, that the article does in some way link one or other or both of them to the funding of terrorism, then we accept, as an absolute fundamental assumption in this case, that such allegation is untrue. The defendants could have taken the course of proving it if they wished, but they have chosen not to. It is not for the claimants to prove anything. You and I therefore proceed on the basis that neither claimant was being monitored nor suspected nor on any list of suspects provided to the Saudis by the United States Government or anyone else. You have heard evidence from bankers and in written form from SAMA in this case, but that is not because the claimants have to prove their innocence. They do not. That is for reasons which I will explain more fully later, but it is partly said to be relevant to Mr Dorsey’s evidence on what his sources told him. To put it simply, what Mr Price argues is that if in fact it was not true that they were on the list and it is not true they were being monitored, how can his sources have given him that information? What matters at this stage is that I am stating, as the law requires me to state, that they are fully entitled to the presumption that they are not guilty of funding terror or on any list or suspected of doing so.”

“There is, as you know, a huge clash here that could not really be clearer or starker. It is a classic jury issue to be resolved by you in the light of your impression of the witnesses, primarily, but also of course the documents and of counsels’ rival submissions on them. Mr Robertson argues that the sources are genuine and invites you to find that, and that this very experienced journalist, Mr Dorsey, would not have dreamt of making any of it up. He set out yesterday, you will remember, 13 reasons why you should believe him. I am sure you will have those arguments well in mind.”

“Of course people may decide not to do business with a company or may be wary of doing business with a company, but much greater damages no doubt, you would think, would be appropriate for a human being than a corporate entity. Of course, even so, there has to be something sufficient to serve the object of vindicating the company, assuming always that you decide that the article bears some defamatory meaning of the company. Here, as you know, you heard evidence from the bankers and in writing from SAMA. As I said to you earlier, it is somewhat disconcerting because there is here a presumption of innocence to which the claimants are entitled. They do not have to prove anything. In this case, the defendants have not made it part of their case that the allegations were true in any defamatory sense, but they do still maintain, as a justification for not publishing the SAMA denial, that they do not actually believe the SAMA denial. In judging the reasonableness of that stance in the context of damages, you were asked to take that evidence into account. Three bankers were called before you in person, and you had statements read to you from others, to say, “We were not asked to monitor any accounts relating to the Jameel Group and we have not done so,” and SAMA has also issued the denial, saying that they were not given a list on which that name appeared. The defendants do not believe that. That is their privilege. Of course, we also heard evidence from various people in the banking world that SAMA is respected internationally as a central bank. It operates within the standards required by the International Monetary Fund and those people, at any rate, would take statements from SAMA seriously and would pay regard to what they said. You have got a conflict there. It may not matter very much at the end of the day, because, as I say, in this context we are only concerned with how it plays on damages.”

“8. I must assume that the words are defamatory in some sense but not in one that is pitched any higher than “reasonable grounds to suspect” involvement in the funnelling of money to terrorists. 9. Mr Robertson invited me to conclude that the jury must have decided, in the light of their awards of damages (£30,000 and £10,000 respectively), that the words conveyed a meaning corresponding to the lowest tier of gravity listed by Brooke LJ in Chase – that is to say that there must have been merely some “grounds for investigating”

“I turn first to the gravity of the underlying defamatory imputation here (i.e. possible involvement at some level in funnelling funds to terrorists), which is plainly at the higher end of the scale. Whatever the precise meaning to be attributed to the article, which is a matter for the jury, it plainly contemplates at least the possibility of “witting” involvement. One interpretation would be that the 150 accounts allegedly being monitored belonged to persons suspected of terrorist involvement. It is not suggested that what was taking place was a purely routine monitoring, such as would not reflect adversely upon anyone (e.g. analogous to screening luggage at an airport). In any event, the finger is clearly pointed at no more than a handful of entities or institutions.”

“What matters is whether the public interest required that the Wall Street Journal, as published here, should identify these Claimants on 6 February 2002 as being on a list, emanating from law enforcement agencies in the United States, of persons whose financial transactions it would be appropriate to monitor.”

“Mr Robertson asks me not to proceed on the footing that the jury’s answers entailed dishonesty on Mr Dorsey’s part. I do not propose to do so. I am strictly bound by the answers of the jury, save in so far an answer may inevitably carry some implication. I accept, naturally, that the jury may have concluded that Mr Dorsey’s evidence about the sources was mistaken, through faulty recollection, or that his evidence about the sources was prompted to an extent by wishful thinking. Nevertheless, I have to accept, it seems to me, that they rejected the Defendant’s evidence in respect of those sources. Since Source A was only “a lead”, it would appear that the remaining four corners of the Defendant’s case on sources have been knocked away by the jury’s answers.”

“It is true that Mr Dorsey and Mr Glenn Simpson, based in Washington, also gave evidence of some degree of confirmation of the story (or at least of answers or declination to comment, which they interpreted as confirmation). That evidence was, however, fundamentally disputed in cross-examination and the parties did not suggest formulating any question for the jury’s decision on any of these points.”

“THE PRESUMPTION OF FALSITY APPEAL 6. The learned judge erred: a. In directing the jury that any words they found to be defamatory were necessarily false; b. In directing them that this presumption meant that the article was false in implying that either Claimant was (a) on a US list, (b) that had been supplied to SAMA, and (c) in respect of which SAMA had ordered monitoring.”

“D contends in respect of (a) and (b) above that: a. The common law presumption that defamatory words are false is irrational and unnecessary and gravely prejudicial, and in breach of Article 10 and Article 6 of the Human Rights Act 1998, and b. that the direction based on this presumption was (i) a misdirection, since it was applied to allegations which were not defamatory, (ii) severely prejudiced the defence, because in the circumstances of the case it amounted to a direction that the jury could not find that D had proved affirmatively that sources B – E had confirmed the information because that information had to be false.” a. In directing the jury that any words they found to be defamatory were necessarily false; b. In directing them that this presumption meant that the article was false in implying that either Claimant was (a) on a US list, (b) that had been supplied to SAMA, and (c) in respect of which SAMA had ordered monitoring.”

“The judge erroneously applied the presumption as to falsity in relation to statements (a) that the Cs were on any list provided by the US to the Saudis (information provided by two US embassy officials, source C and source D); and (b) that the Cs were in consequence monitored (information from source B and source E). These statements were not defamatory. The only allegation to which the presumption could properly, in its own terms, apply was the defamatory implication that they were suspected of terrorist funding. By directing the jury to apply the presumption to the information given by the sources, the judge effectively foreclosed them from finding that D had proved on the balance of probabilities that the journalist Dorsey had received confirmation from them of the information that he published. The jury had no alternative but to return negative answers – the “presumption of innocence” (as the judge miscalls the quite different presumption of falsity) meant that the Cs could not have been on a US list and could not have been monitored. Thus the judge was wrong to find, in his decision on qualified privilege at paragraph 13, “since source A was only ‘a lead’, it would appear that the remaining four corners of the defendant’s case on sources have been knocked away by the jury’s answers”

“It is true that Mr Dorsey and Mr Glenn Simpson, based in Washington, also gave evidence of some degree of confirmation of the story (or at least of answers or declination to comment, which they interpreted as confirmation). That evidence was, however, fundamentally disputed in cross-examination and the parties did not suggest formulating any question for the jury’s decision on any of these points ”

“It is correct that no question was left to the jury concerning his evidence but neither did the Cs ask that it should be. (In any case, any such question would not have been straightforward: the jury would have had to have been asked if Mr Simpson’s source had effectively confirmed what Mr Dorsey had been told). But this did not release the Learned Judge from the obligation to evaluate that evidence and express his view about it. The fact that no question was formulated for the jury as to this evidence does not have the consequence that D is prevented from relying upon it.”

“The interest is that of the public in a modern democracy in free expression and, more particularly, in the promotion of a free and vigorous press to keep the public informed. The vital importance of this interest has been identified and emphasised time and again in recent cases and needs no restatement here. The corresponding duty on the journalist (and equally his editor) is to play his proper role in discharging that function. His task is to behave as a responsible journalist. He can have no duty to publish unless he is acting responsibly any more that the public has an interest in reading whatever may be published irresponsibly …”

“There are at least two potential problems in the light of Bonnick v Morris, First, I raised the question with counsel whether the “alternative” meaning that their Lordships were contemplating (at paragraph [24] of the judgment) would necessarily be a defamatory meaning or whether it might also be non-defamatory. The answer may depend perhaps on how the alternative meaning fits into the particular case. If one is considering whether there would have been a duty to publish words bearing that meaning, it would only make sense if it was indeed defamatory. Otherwise, judges would find themselves in the position sometimes of recognising, in the light of a jury’s decision, that the offending article was defamatory but holding that it was nevertheless privileged because some people (including perhaps the author) thought it had a non-defamatory meaning. The matter could not surely be judged on the basis of a duty to publish a non-defamatory imputation.”

“no responsible journalist could conceivably disregard the defamatory meaning pleaded by the Claimants (i.e. of “reasonable grounds for suspicion”) since it was “obviously one possible meaning of the article in question”

“these are all people with reputations to protect and, you know, if you are an experienced reporter you know the consequences of your story”

“a trading corporation may sue for a libel calculated to injure them in respect of their business, and may do so without any proof of damage general or special. Of course if there be no such evidence the damages given will probably be small.”

“Slander affecting official, professional or business reputation 2 In an article for slander in respect of words, calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.” 2 In an article for slander in respect of words, calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of the publication, it shall not be necessary to allege or prove special damage, whether or not the words are spoken of the plaintiff in the way of his office, profession, calling, trade or business.”

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…” “2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society …for the protection of the reputation or rights of others…”

“As with an individual plaintiff, where a company brings proceedings for libel, there is no obligation on them to show that they have suffered actual damage … The effect of this is, not that there is an irrebuttable presumption of substantial damage, but that a corporate plaintiff which shows that it has a reputation within the jurisdiction, and that the defamatory publication is apt to damage its goodwill, has a complete cause of action capable of leading to an award of substantial damages. Other considerations could lead to an award of nominal damages …”

“… the freedom conferred by Article 10 of the Convention is not of an absolute, unfettered nature. It does not authorise the publication of defamatory material. On the contrary, the second paragraph of Article 10 offers specific protection for the “reputation or rights of others”