“At common law, a cause of action for libel is made out by proof that the defendant was responsible for the publication to one or more third parties of a written statement that bore a defamatory meaning about the claimant. Statute has added a requirement that publication caused serious harm to the claimant’s reputation or is likely to do so:Defamation Act 2013, s 1(1) . If this much is established, the burden shifts to the defendant to raise a defence. So defamation remains a relatively simple tort to prove …”
“While military and intelligence services officially report to civilian authorities, they operate independently and without effective civilian oversight or control. There were reports that members of the security forces committed numerous abuses.”
“Significant human rights issues included credible reports of: unlawful or arbitrary killings, including extrajudicial killings by the government or its agents; forced disappearance by the government or its agents; torture and cases of cruel, inhuman, or degrading treatment or punishment by the government or its agents; … arbitrary detention; … serious restrictions on free expression and media, including violence against journalists, unjustified arrests and disappearances of journalists …; … serious government corruption; …” and “There was a lack of government accountability, and abuses, including corruption and misconduct by security services, often went unpunished, fostering a culture of impunity among perpetrators.”
“In July 2022, by-elections in 20 seats in the Punjab were held and the ISI, army and corrupt politicians orchestrated a detailed plan of how that was to be rigged against Imran Khan’s ruling party. Having been advised of this by his sources, the Defendant exposed this plan on his news videos and in his tweets on19 June 2022 ,20 June 2022 and29 June 2022 … The Defendant’s sources advised him that his exposure of this plot caused great anger in the ISI and the army, particularly the Claimant and General Bajwa”
“I have been told that Imran Khan is being made a fool in the name of elections, although there is no plan to hold elections till 2023 and Hamza’s government will continue in Punjab. It’s because Brigadier Rashid (ISI’s Sector Commander Punjab) has taken complete occupation of the Lahore High Court.”
“The reasons why the elections were not proceeding as they should was because the Claimant had taken complete control of the Lahore High Court.”
“Allegedly ISI Sector Commander Punjab Brig Rashid Nazeer had several meetings with Asif Ali Zardari during the latter’s current stay at Lahore. Subject: Elections Manipulation. Details in upcoming Vlog.”
“The Claimant had allegedly had several meetings with Asif Ali Zardari during his stay to discuss election manipulation.”
“I want to make it clear that black sheeps like Brigadier Faheem and Rashid are not even one percent of Pakistan army and the ISI, the proof are those silent soldiers who leak information about their day and night actions and movements; they will behead them at the right time. Just wait a little dear countryman, then there will be a mighty tussle.”
“The Claimant is a disgrace (black sheep) in the ISI and Pakistan Army who will be eliminated at the right time by soldiers working covertly leaking information about the actions and movements of such people.”
“I seek Allah’s protection from Satan, the accursed. In the name of Allah, the most Gracious, the most Merciful. Dear viewers, Salam from Major Adil Rajah! Dear viewers, before starting today’s vlog, let me tell you something : As I call you ‘dear viewers’ in an adoringly passionate tone, my wife has objected to its protesting that I should also call her ‘my dear’ in such a loving I feel it is unfair to carp with me. Let me tell you that I address her even more passionately. But see, your love is kicking up a row in my house. As I am on my travels, I was to make today’s Vlog reaching home but the silent soldiers of Pakistan have told me that there is a massive resistance, though stealthily, is brewing among the soldiers of Pakistan army, the silent soldiers, who are corresponding to the thoughts of Pakistani public and whose number has multiplied enormously. Some information from those silent soldiers has been conveyed to me. It was imperative to share that information with you in time. That’s why during the trip, staying at a place, I am recording this Vlog for you. I will try to upload this Vlog during my travels because this information is very important. It was very necessary for this information to reach you in time. And I hope that PTI media cell among you should covey [sic] this news to Mr Khan. I will also try to do so to convey this news directly. And it shall certainly reach him because this information is also directly related to him. As I mentioned, I tweeted a few months ago that in these upcoming elections extra ballot papers are being imported, reportedly. And they are in a large number. I just mentioned it vaguely. Though you can see what happens. It’s that these extra ballot papers are reportedly published in a few printing presses in Rawalpindi. The papers are printed. Then they are stamped. And in far-off areas, especially of Baluchistan, there you can see that entire election is managed, ballot papers are stamped. The information which I am going to convey to you, then you will realise how this entire process is meticulously contrived. I had told you that the Sector Commander in Lahore, the Sector Commander of Inter-Services Intelligence (ISI) Punjab, Mr Brigadier Rashid Naseer ... I have been given information from Pakistan that reportedly an election cell has been set up for the upcoming by-elections in the Sector Headquarter Lahore by the sir. The Sector Headquarter has been given the task to gather daily progress of PDM and PMLN candidates and to gauge their prospects of victory on a daily basis to assess their progress and make a report on it. Then the election cell should hand this over to the Sector Commander and the Sector Commander should obviously send it to the Headquarter at Aabpara. It is being said reportedly that these people, that candidates are allegedly summoned. Those people are being allegedly called in the Sector Headquarter who can influence the vote bank and who are the local influencers, those who are at the local level. Their lists are already made. They are being summoned and pressurised to cast votes against PTI candidates and support PDM and PMLN candidates to vote in their favour. PTI supporters are being asked to vote for Noon League. They are reportedly being offered different benefits and incentives for this. The silent soldiers have also told me that Brigadier Rashid has been provided with unaccountable funds to manage these elections. It is also being said reportedly that Brigadier Rashid will allegedly use the police and Dolphin Force to harass the PTI supporters in the PTI election campaign. Once again, the Punjab Police and Dolphin Force will be blatantly used. As I have told you, huge funds have been provided, reportedly, to Brigadier Rashid to ensure the victory of PMLN and PDM in the by-elections. The entire staff of the ISI Sector Headquarter Lahore and the ISI Punjab has been allegedly deputed on this exercise. I have been informed and all other things are relegated to the second priority, while the forthcoming election is on the top priority, as you know. They are employed in its management. Let me tell you also that as my silent soldiers have said it is fake news that Imran Khan is being engaged by giving him some good offer. It is out and out fake news because they are just luring Imran Khan. This is just a time buying exercise from Imran Khan. These are just time buying tactics. That’s why Imran Khan is raising this slogan. Besides, let me tell you and I have been told by silent soldiers that I should tell Imran Khan and his supporters that the people who are advising him to mollycoddle General Bajwa, he should not pay heed to them because they are traitors in his ranks. This is being told to me to let you know. And here I have breaking news of today for you though there is not much room for detail in thumbnails. However, I should tell you that Brigadier Rashid Naseer, the Sector Commander Punjab has held several meetings with Mr Asif Ali Zardari and I had tweeted on it that he has reportedly come to Lahore for, reportedly, such meetings with the objective of helping Pakistan People’s Party (PPP) win more and more election seats in the by-elections in Punjab. Reportedly, the father-in-law also joined such a meeting from Rawalpindi on Zoom. Just see their interest. And Mr Zardari wants to bag more and more seats in Sindh and Punjab so that Bilawal Bhutto Zardari should become the next Prime Minister with the collaboration of other coalition partners. The deal is that Bilawal will succeed Shahbaz Sharif and his son as the PM. I feel that Punjab will again be given to Noon League as they strike such deals as usual. But very interesting news is that they want to designate Faryal Talpur as the next President of Pakistan. Zardari reportedly wants to make her the next president. Just look at their mindset. Just reckon. Let me drink some water. I needed a water break. Sorry for that. Let me once again tell you and let it sink in that they want to designate Faryal Talpur as the President of Pakistan, especially Mr Zardari. I am being told that PTI needs to synergise its efforts in the by-elections because one thing is encouraging for PTI that despite this entire manoeuvring, lying and investing such huge funds, despite such ploys, Brigadier Rashid Naseer, the Sector Commander Punjab has purported assessment and this is the official view that PTI enjoys better position to win the elections even now. And to counter it, to nullify the advantage PTI cherishes, they are working hard day in and day out. What a performance. What a performance, Sir Rashid! What a performance! You have destroyed your life in the hereafter just to serve one person. May Allah hold you accountable. Besides, let me tell you a very important news that General Bajwa considers himself very weak this time. The silent soldiers have told me that. That’s why he is seeking American help and against this help he has allegedly promised America that they will recognise Israel and develop good relations with India as their top priority. The silent soldiers also tell me that DGISI General Nadeem Anjam has reportedly called on the US Ambassador the previous day in this regard. You see how anyone can know such things. Let him deny it if he hasn’t met. Let him deny the meeting. But verily they met yesterday. Let me tell you another core thing that Mr Bajwa thinks and only he thinks that Bilawal is the future of Pakistan. Just imagine. Bilawal Bhutto Zardari should not be angry with me, though he follows me. I have taken the screenshot as he may unfollow me in the days to come. In that case, I should have some proof. General Bajwa sees Bilawal as the future of Pakistan and Bilawal Bhutto can call the Chief any time. I am told that only Bilawal Bhutto allegedly enjoys this favour. Even Maryam doesn’t enjoy such a favour. I am told that even Maryam doesn’t have such a direct favour. Only Bilawal Bhutto enjoys this exclusive favour because he has become General Bajwa’s favourite personality. In the end, the silent warriors of Pakistan have given a very important news that I should share with you. The staff of the Election Commission and Chief Election Commissioner have reportedly convened many meetings with the Returning Officers in the Safe House, the Safe House on Iqbal Road, Lahore Cantt. It is the house of such frequent meetings between ISI Sector Punjab and the staff of the Election Commission, District Returning Officers and Chief Election Commissioner. Their meetings are going on. Let me repeat : the Safe House on Iqbal Road, Lahore Cantt. This venue may be changed after the broadcast of this Vlog. But we will tell you the next one. Your silent warriors are there. I tell you in the end that the topic of discussion of these meetings is rigging in the forthcoming by-elections which are going to come off the next month. No other issue is being discussed other than how to manage them. Let me tell you a thing in the end that why these silent soldiers are doing this duty. The majority of ISI, let me put it as 99% ISI and 99% Pakistan Army don’t get any money for managing these elections. This ploy, as you know, has been in vogue since forever. They certainly do not get any money for managing these elections. They are told that it is betterment of Pakistan and they should carry out this task. They are motivated. They do so to serve Pakistan. They do so with their conviction. In the present case, they are also being briefed about the same thing but nobody is going to buy it. There is no-one to buy this narrative of the high command of a few people. That’s why the silent soldiers have continued their resistance. I leave it to you with this information which I have shared with you is to reach as to how you relay it further and how. Dear viewers, please share this information as much as possible. Convey it to your dear friends. And get yourself mobilised in the elections to beat them as it is the only way to outdo them. You should come out of your home in massive numbers and cast votes. This is the only way to beat them. I will also tell Mr Khan pertaining to this situation so that he may devise some strategy. Thanks very much. Allow Adil Rajah to leave till the next Vlog.”
“(1) The Claimant has set up an election cell in the Sector Headquarters in Lahore tasked with gathering daily progress reports of PDM and PMLN candidates, summoning local influencers and pressurising and bribing them into casting votes against PTI candidates. (2) The Claimant is part of a meticulously contrived process set up by military and intelligence officers to rig elections in Pakistan. (3) The Claimant has been abusing his position, using huge unaccounted funds to ensure the victory of PDM and PMNL and manipulating elections in Pakistan. (4) The Claimant will be abusing his position and power to use the Police and Dolphin Force to harass PTI supporters during the PTI election campaign. (5) The Claimant has sinned and destroyed his chances of a promised life in the hereafter just to serve one person.”
“Just wonder why would I get 25,000,00 Rupees from a Dates’ trader while doing business of millions and billions of Rupees with the DHA. There is no proof of that. Have some shame and show some @OfficialDPRPP.guts instead of playing in Rashid’s hands #shameOnBrigRashidNaseer.”
“The Claimant had caused the police to do his bidding by making a baseless allegation of bribery against the Defendant.”
“According to my sources, both brigadiers belong to ISI Internal Wing (C Wing) which is involved directly in political interference and horse-trading for General Bajwa. @10DowningStreet I will take this matter to @FCDOGovUK @UKParliament @UKoffice @hrw @democracynow @ImranKhanPTI.” @10DowningStreet I will take this matter to @FCDOGovUK @UKParliament @UKoffice @hrw @democracynow @ImranKhanPTI.”
“The Claimant is directly involved in political interference.”
“According to my sources, this FIR has been registered against me by Brigadier Rashid Naseer, sector commander ISI Punjab, who did so through IG Punjab in order to block my identity card and my passport so that to defame me because I have exposed his role rigging plans in by elections. This is the reality of fraudster from Lahore.”
“The Claimant registered a complaint against the Defendant in order to defame him and prevent him receiving his identity card and passport because the Defendant had exposed his plans to rig elections and this is how the Claimant, a fraudster from Lahore, operates.”
“When nothing else worked, then they registered a fake case against me in an old date on a fake location and arrested my brother-in-law from my home. According to my sources, the ISI is directly involved in this fraud and this case was registered on the instructions of Brigadier Rashid Naseer and Faheem Raza.”
“On the instructions of the Claimant a fake case was registered against the Defendant and his brother-in-law was arrested.”
“According to my sources, both these Brigadiers are the left and the right arm of the Regime Change. Both of them, while carrying out illegal actions to please their masters, have become billionaire themselves. @ImranKhanPTI @SSEHBA/1 @Dr_YasminRashid” @ImranKhanPTI @SSEHBA/1 @Dr_YasminRashid”
“The Claimant played a prominent role in regime change and his corrupt practices have made him a billionaire.”
“… section 1 necessarily means that a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it “has caused or is likely to cause” harm which is “serious”
“Where a defendant publishes a specific allegation of a seriously damaging kind in circumstances which would ordinarily lead to an inference of serious reputational harm the fact, if it be so, that those to whom that allegation is published are politically opposed to the claimant or dislike him or have a generally low opinion of him for some other reason is not a proper basis on which to reject that inference … judges of the Media and Communications List have consistently, and in my view correctly, rejected arguments to the effect that a serious allegation of specific wrongdoing does not cause serious harm if the audience dislikes the claimant for some other reason”
“4. Publication on matter of public interest (1) It is a defence to an action for defamation for the defendant to show that— (a) the statement complained of was, or formed part of, a statement on a matter of public interest; and (b) the defendant reasonably believed that publishing the statement complained of was in the public interest. (2) Subject to subsections (3) and (4), in determining whether the defendant has shown the matters mentioned in subsection (1), the court must have regard to all the circumstances of the case. (3) ... (4) In determining whether it was reasonable for the defendant to believe that publishing the statement complained of was in the public interest, the court must make such allowance for editorial judgement as it considers appropriate. (5) For the avoidance of doubt, the defence under this section may be relied upon irrespective of whether the statement complained of is a statement of fact or a statement of opinion. (6) The common law defence known as the Reynolds defence is abolished.”
“Editors invoking the public interest will need to demonstrate that they reasonably believed publication - or journalistic activity taken with a view to publication - would both serve, and be proportionate to, the public interest and explain how they reached that decision at the time”. (In the present case, the Defendant stated at [23] of his witness statement for trial that “I have followed the journalistic code of conduct to the best of my abilities in these publications”
“In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”
“… however little insight a judge may gain from the demeanour of a witness of his own nationality when giving evidence, he must gain even less when… the witness belongs to some other nationality… To rely on demeanour is in most cases to attach importance to deviations from a norm when there is in truth no norm.”
“279. In assessing the reasonableness of a defendant’s belief that publication was in the public interest, the focus is on the things the defendant said or knew or did, or failed to do, up to the time of publication. Events that post-date publication are unlikely to have any real bearing on the issue. "Could whoever published the defamation, given whatever they knew (and did not know) and whatever they had done (and had not done) to guard so far as possible against the publication of untrue defamatory material, properly have considered the publication in question to be in the public interest?". 280. When determining the reasonableness of a defendant’s belief that publication was in the public interest, the Court must "make such allowance for editorial judgement as it considers appropriate": s4(4). In Banks v Cadwalladr[2022] 1 WLR 5236 , Steyn J summarised the principles that emerge from the authorities on this point: [112] The importance of giving respect, within reason, to editorial judgment is relevant when considering the tone and content of the material and the nature and degree of the steps taken by way of verification prior to publication. [113] It is important to consider the process and the publication in the round. As Lord Mance noted in Flood, in Bonnick v Morris[2003] 1 AC 300 the journalist had fallen short both in not making further inquiries about the anonymous source and in not including the claimant’s explanation, but the Privy Council was "prepared to overlook some respects in which the journalist's conduct could legitimately be criticised" in reaching an overall judgment as to the availability of the public interest defence ([130]). Lord Mance continued at [131]: “The need to look at the position in the round was also identified by Lord Bingham in Jameel [34] when he disclaimed too close a focus on particular ingredients which have (or have not) been included in a composite story. He said: ‘This may, in some instances, be a valid point. But consideration should be given to the thrust of the article which the publisher has published. If the thrust of the article is true, and the public interest condition is satisfied, the inclusion of an inaccurate fact may not have the same appearance of irresponsibility as it might if the whole thrust of the article is untrue.’” [114] Journalistic freedom covers possible recourse to a degree of exaggeration or even provocation. It is well established that this is something the court must tolerate. It is not for the court to substitute its views for those of journalists as to what techniques of reporting should be adopted. 281. An issue that arises frequently when considering a public interest defence is the approach the Court should adopt to the meaning of the publication. It is well-established that the public interest defence is not to be assessed simply by reference to the single natural and ordinary meaning of the publication. In Riley v Murray [2023] EMLR 3, Warby LJ explained: [82] ... In Bonnick, Lord Nicholls said at [24] that a journalist should not be penalised for making a wrong decision on a question of meaning on which people might reasonably take different views. But he went on at [25] to say that this "should not be pressed too far". “In the normal course a responsible journalist can be expected to perceive the meaning an ordinary reasonable reader is likely to give to his article. Moreover, even if the words are highly susceptible of another meaning, a responsible journalist will not disregard a defamatory meaning which is obviously one possible meaning of the article”
“A defamatory meaning should not be ignored by a journalist if it is 'obviously one possible meaning' ([25]) or 'glaringly obvious' ([27]); to do so would not be reasonable. But if that threshold is not reached, the reasonable belief of a journalist who did not perceive the more damaging meaning falls to be assessed by reference to the less damaging meaning”. [83] It may be that these principles do not transpose directly into a situation such as the present, but I do not think the defendant can reasonably argue for any more generous test. She has never done so. She has not addressed the issue. The defendant’s argument has always been that her conduct should be assessed exclusively by reference to what she reasonably believed the GAT to mean, and that on that footing it was reasonable for her to believe that it was in the public interest to publish the Factual Allegation and the Opinion. That, in my view, is simplistic and wrong. When assessing the reasonableness of a belief that it is the public interest to denounce a person as dangerous and stupid for what they have said in a public statement, it must be relevant that the statement has an obvious alternative and lesser meaning which is not worthy of such denunciation. Here, the Judge was entitled to conclude that the defendant ought reasonably to have appreciated that the GAT could also be interpreted as conveying the hypocrisy meaning and that it was therefore unreasonable for her to believe that presenting the position unambiguously, as she did, was in the public interest. [84] This approach seems to me consistent with one strand of the authorities to date, which is that "a belief [is] reasonable for the purposes of s.4 only if it is one arrived after conducting such enquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case"… endorsed by the Supreme Court as "no doubt helpful" … [85] I see no inconsistency with my judgment in Yeo, aspects of which are relied on by the defendant. In the passages relied on, at [175] and [179], I said that in a case such as that one "it will be 'fair' to present readers with factual conclusions honestly and reasonably drawn by journalists who were themselves witnesses to the key events; it is permissible to summarise, and to be selective; ... fairness does not require the publisher to present the reader with all the factual material that could support a competing assessment ... it is not incumbent on the responsible journalist to lay out for the reader all the pros and cons relevant to a particular conclusion". Yeo was very different from this case. It was a decision on the application of the Reynolds defence to newspaper reports of an undercover journalistic investigation of a leading politician. But I also said (at [175]) that "if the evidential picture is misrepresented or presented in a wholly unbalanced way, that may well be unfair". Here, the Judge found that the evidential picture had been unreasonably misrepresented.” 282. The Court must have regard to all the circumstances of the case: s4(2). Although s4(6) has abolished the old Reynolds defence (Reynolds v Times Newspapers Ltd[2001] 2 AC 127 ), the rationale for the statutory defence was not materially different and the common law principles remained relevant to the interpretation of the statutory defence … The ten so-called Reynolds factors - although not to be regarded as any sort of checklist - "may well be relevant to whether the defendant's belief was reasonable within the meaning of subsection 1(b)"… In Hijazi -v- Yaxley-Lennon [2021] EMLR 7 [24], I noted: “... At the stage of the assessment as to what information the defendant had and what inquiries s/he made, Lord Nicholls’ third to fifth factors are likely to remain valid in many cases: ‘3. The source of the information. Some informants have no direct knowledge of the events. Some may have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.’” 283. A factor, identified by Lord Nicholls, which remains relevant to the assessment of any public interest defence, is the extent to which the defendant attempted to verify the allegations it intends to make. Save in cases of neutral reportage (under s.4(3)), efforts to verify are usually regarded "as an important factor in the assessment of the reasonableness of a defendant's belief that publication was in the public interest" … In Lachaux, I explained: [134] It is also clear … as endorsed by Lord Wilson in Serafin [69], that providing they are not treated as any sort of 'checklist', the Reynolds factors will remain potentially relevant when assessing whether a defendant's belief that publication was in the public interest was objectively reasonable. Lord Wilson traced the legislative history of s.4 through the post-Reynolds authorities in [57] to [59], and observed in [60]: “In [Flood -v- Times Newspapers Ltd[2012] 2 AC 273 ] ..., the defendant published an article taken to mean that there were reasonable grounds to suspect that the claimant, a police officer, had corruptly taken bribes. The allegation was false. This court held that the defendant nevertheless had a valid defence of public interest. Lord Phillips of Worth Matravers, the President of the court, said at [26] that in that case analysis of the defence required particular reference to two questions, namely public interest and verification; at [27] that it was misleading to describe the defence as privilege; at [78], building on what Lord Hoffmann had said in the Jameel case at [62], that the defence normally arose only if the publisher had taken reasonable steps to satisfy himself that the allegation was true; and at [79] that verification involved both a subjective and an objective element in that the journalist had to believe in the truth of the allegation but it also had to be reasonable for him to have held the belief. Lord Brown at [113] chose to encapsulate the defence in a single question. 'Could', he asked, 'whoever published the defamation, given whatever they knew (and did not know) and whatever they had done (and had not done) to guard so far as possible against the publication of untrue defamatory material, properly have considered the publication in question to be in the public interest?'. Lord Mance at [137], echoing what Lord Nicholls had said in the Reynolds case at p.205, stressed the importance of giving respect, within reason, to editorial judgement in relation not only to the steps to be taken by way of verification prior to publication but also to what it would be in the public interest to publish; and at [138] Lord Mance explained that the public interest defence had been developed under the influence of the principles laid down in the European Court of Human Rights." [135] As Lord Wilson noted ([66]), theExplanatory Notes to the Defamation Act 2013 stated that the intention behind s.4 was to: “reflect the common law as recently set out in the Flood case and in particular the subjective and objective elements of the requirement now both contained in subsection 1(b)”. [136] In [60], Lord Wilson referred to Lord Brown's question from Flood. To similar effect, in Economou [2017] EMLR 4 [241], Warby J held: “I would consider a belief to be reasonable for the purposes of section 4 only if it is one arrived at after conducting such inquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case”
“However,art.10(2) of the Convention states that freedom of expression carries with it 'duties and responsibilities', which also apply to the media even with respect to matters of serious public concern. These duties and responsibilities are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the 'rights of others'. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations …” [140] Similarly, from Times Newspapers Ltd v United Kingdom [2009] EMLR 14 (“Loutchansky”): “[41] The Court observes that the most careful of scrutiny under art.10 is required where measures or sanctions imposed on the press are capable of discouraging the participation of the press in debates on matters of legitimate public concern …The Court further recalls that particularly strong reasons must be provided for any measure limiting access to information which the public has the right to receive … [42] However, the Court reiterates that art.10 does not guarantee a wholly unrestricted freedom of expression to the press, even with respect to press coverage of matters of serious public concern. When exercising its right to freedom of expression, the press must act in a manner consistent with its duties and responsibilities, as required by art.10(2). These duties and responsibilities assume particular significance when, as in the present case, information imparted by the press is likely to have a serious impact on the reputation and rights of private individuals. Furthermore, the protection afforded by art.10 to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with responsible journalism … [141] A key feature of Mr Price QC’s submissions is that the articles were reporting, rather than adopting, the allegations made by Afsana. In the case of the Standard Article, he relies particularly on the fact that there was an express statement at the end of paragraph [4] that the allegations of domestic violence had not been tested in court and were denied by the Claimant. Rightly, he has referred to the well-known statements of principle, from the jurisprudence of the European Court of Human Rights, emphasising the importance in not fettering the media’s ability to report on matters of public interest. By way of recent example from the ECtHR’s decisions, in Ólafsson v Iceland(2018) 67 EHRR 19 [56] (with footnotes omitted): “The Court further reiterates that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’s role of providing information on current events, opinions and ideas, and that ‘punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so’.” [142] This principle cannot be seen in isolation and needs to be properly understood in the context of Convention jurisprudence (particularly the importance attached, usually, to verifying defamatory allegations recognised in Axel Springer and Loutchansky). Seen in that context, it does not support a contention that, where a publisher is reporting allegations made by others, which can damage the reputation of another, a publisher is relieved of the onus to observe what the ECtHR has referred to as the “ordinary journalistic obligations”: Ólafsson [57]. [143] Publishers have at their disposal a variety of reporting techniques. For example, those who are unable or unwilling to take steps to verify defamatory allegations, and who wish potentially to rely upon a public interest defence to defend their publication, may well have to adopt a reporting technique that reduces the overall defamatory impact (for example the inclusion of statements that are effective in indicating that the publisher is not adopting the allegations). Alternatively (where the circumstances permit), the publisher might be able to present the allegations as part of an accurate and impartial account of a dispute to which the claimant was a party. In that latter respect, although the publisher is likely, by reason of s4(3), thereby to be relieved of the need to take steps to verify the allegations, s/he will nevertheless be required to obtain and publish the other side of the dispute. These are examples to demonstrate the sort of issues that a publisher is likely to have to consider when deciding what technique of reporting is chosen. Difficult questions of judgment may arise, for example, the extent to which it is necessary to include defamatory allegations against others in an article which otherwise makes a significant contribution to a matter of public interest. If a journalist or publisher can demonstrate that s/he has carefully considered the necessity for, and proportionality of, the harm to the reputations of those included in the publication, then a Court is likely to accord due weight to that assessment. Ultimately, in each case where a defendant relies upon a defence under s4, the Court has to make an assessment of all the circumstances and to make due allowance for proven exercise of editorial judgment.” [112] The importance of giving respect, within reason, to editorial judgment is relevant when considering the tone and content of the material and the nature and degree of the steps taken by way of verification prior to publication. [113] It is important to consider the process and the publication in the round. As Lord Mance noted in Flood, in Bonnick v Morris[2003] 1 AC 300 the journalist had fallen short both in not making further inquiries about the anonymous source and in not including the claimant’s explanation, but the Privy Council was "prepared to overlook some respects in which the journalist's conduct could legitimately be criticised" in reaching an overall judgment as to the availability of the public interest defence ([130]). Lord Mance continued at [131]: “The need to look at the position in the round was also identified by Lord Bingham in Jameel [34] when he disclaimed too close a focus on particular ingredients which have (or have not) been included in a composite story. He said: ‘This may, in some instances, be a valid point. But consideration should be given to the thrust of the article which the publisher has published. If the thrust of the article is true, and the public interest condition is satisfied, the inclusion of an inaccurate fact may not have the same appearance of irresponsibility as it might if the whole thrust of the article is untrue.’” [114] Journalistic freedom covers possible recourse to a degree of exaggeration or even provocation. It is well established that this is something the court must tolerate. It is not for the court to substitute its views for those of journalists as to what techniques of reporting should be adopted. [82] ... In Bonnick, Lord Nicholls said at [24] that a journalist should not be penalised for making a wrong decision on a question of meaning on which people might reasonably take different views. But he went on at [25] to say that this "should not be pressed too far". “In the normal course a responsible journalist can be expected to perceive the meaning an ordinary reasonable reader is likely to give to his article. Moreover, even if the words are highly susceptible of another meaning, a responsible journalist will not disregard a defamatory meaning which is obviously one possible meaning of the article”
“A defamatory meaning should not be ignored by a journalist if it is 'obviously one possible meaning' ([25]) or 'glaringly obvious' ([27]); to do so would not be reasonable. But if that threshold is not reached, the reasonable belief of a journalist who did not perceive the more damaging meaning falls to be assessed by reference to the less damaging meaning”. [83] It may be that these principles do not transpose directly into a situation such as the present, but I do not think the defendant can reasonably argue for any more generous test. She has never done so. She has not addressed the issue. The defendant’s argument has always been that her conduct should be assessed exclusively by reference to what she reasonably believed the GAT to mean, and that on that footing it was reasonable for her to believe that it was in the public interest to publish the Factual Allegation and the Opinion. That, in my view, is simplistic and wrong. When assessing the reasonableness of a belief that it is the public interest to denounce a person as dangerous and stupid for what they have said in a public statement, it must be relevant that the statement has an obvious alternative and lesser meaning which is not worthy of such denunciation. Here, the Judge was entitled to conclude that the defendant ought reasonably to have appreciated that the GAT could also be interpreted as conveying the hypocrisy meaning and that it was therefore unreasonable for her to believe that presenting the position unambiguously, as she did, was in the public interest. [84] This approach seems to me consistent with one strand of the authorities to date, which is that "a belief [is] reasonable for the purposes of s.4 only if it is one arrived after conducting such enquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case"… endorsed by the Supreme Court as "no doubt helpful" … [85] I see no inconsistency with my judgment in Yeo, aspects of which are relied on by the defendant. In the passages relied on, at [175] and [179], I said that in a case such as that one "it will be 'fair' to present readers with factual conclusions honestly and reasonably drawn by journalists who were themselves witnesses to the key events; it is permissible to summarise, and to be selective; ... fairness does not require the publisher to present the reader with all the factual material that could support a competing assessment ... it is not incumbent on the responsible journalist to lay out for the reader all the pros and cons relevant to a particular conclusion". Yeo was very different from this case. It was a decision on the application of the Reynolds defence to newspaper reports of an undercover journalistic investigation of a leading politician. But I also said (at [175]) that "if the evidential picture is misrepresented or presented in a wholly unbalanced way, that may well be unfair". Here, the Judge found that the evidential picture had been unreasonably misrepresented.” “... At the stage of the assessment as to what information the defendant had and what inquiries s/he made, Lord Nicholls’ third to fifth factors are likely to remain valid in many cases: ‘3. The source of the information. Some informants have no direct knowledge of the events. Some may have their own axes to grind, or are being paid for their stories. 4. The steps taken to verify the information. 5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.’” [134] It is also clear … as endorsed by Lord Wilson in Serafin [69], that providing they are not treated as any sort of 'checklist', the Reynolds factors will remain potentially relevant when assessing whether a defendant's belief that publication was in the public interest was objectively reasonable. Lord Wilson traced the legislative history of s.4 through the post-Reynolds authorities in [57] to [59], and observed in [60]: “In [Flood -v- Times Newspapers Ltd[2012] 2 AC 273 ] ..., the defendant published an article taken to mean that there were reasonable grounds to suspect that the claimant, a police officer, had corruptly taken bribes. The allegation was false. This court held that the defendant nevertheless had a valid defence of public interest. Lord Phillips of Worth Matravers, the President of the court, said at [26] that in that case analysis of the defence required particular reference to two questions, namely public interest and verification; at [27] that it was misleading to describe the defence as privilege; at [78], building on what Lord Hoffmann had said in the Jameel case at [62], that the defence normally arose only if the publisher had taken reasonable steps to satisfy himself that the allegation was true; and at [79] that verification involved both a subjective and an objective element in that the journalist had to believe in the truth of the allegation but it also had to be reasonable for him to have held the belief. Lord Brown at [113] chose to encapsulate the defence in a single question. 'Could', he asked, 'whoever published the defamation, given whatever they knew (and did not know) and whatever they had done (and had not done) to guard so far as possible against the publication of untrue defamatory material, properly have considered the publication in question to be in the public interest?'. Lord Mance at [137], echoing what Lord Nicholls had said in the Reynolds case at p.205, stressed the importance of giving respect, within reason, to editorial judgement in relation not only to the steps to be taken by way of verification prior to publication but also to what it would be in the public interest to publish; and at [138] Lord Mance explained that the public interest defence had been developed under the influence of the principles laid down in the European Court of Human Rights." [135] As Lord Wilson noted ([66]), theExplanatory Notes to the Defamation Act 2013 stated that the intention behind s.4 was to: “reflect the common law as recently set out in the Flood case and in particular the subjective and objective elements of the requirement now both contained in subsection 1(b)”. [136] In [60], Lord Wilson referred to Lord Brown's question from Flood. To similar effect, in Economou [2017] EMLR 4 [241], Warby J held: “I would consider a belief to be reasonable for the purposes of section 4 only if it is one arrived at after conducting such inquiries and checks as it is reasonable to expect of the particular defendant in all the circumstances of the case”
“However,art.10(2) of the Convention states that freedom of expression carries with it 'duties and responsibilities', which also apply to the media even with respect to matters of serious public concern. These duties and responsibilities are liable to assume significance when there is a question of attacking the reputation of a named individual and infringing the 'rights of others'. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations …” [140] Similarly, from Times Newspapers Ltd v United Kingdom [2009] EMLR 14 (“Loutchansky”): “[41] The Court observes that the most careful of scrutiny under art.10 is required where measures or sanctions imposed on the press are capable of discouraging the participation of the press in debates on matters of legitimate public concern …The Court further recalls that particularly strong reasons must be provided for any measure limiting access to information which the public has the right to receive … [42] However, the Court reiterates that art.10 does not guarantee a wholly unrestricted freedom of expression to the press, even with respect to press coverage of matters of serious public concern. When exercising its right to freedom of expression, the press must act in a manner consistent with its duties and responsibilities, as required by art.10(2). These duties and responsibilities assume particular significance when, as in the present case, information imparted by the press is likely to have a serious impact on the reputation and rights of private individuals. Furthermore, the protection afforded by art.10 to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with responsible journalism … [141] A key feature of Mr Price QC’s submissions is that the articles were reporting, rather than adopting, the allegations made by Afsana. In the case of the Standard Article, he relies particularly on the fact that there was an express statement at the end of paragraph [4] that the allegations of domestic violence had not been tested in court and were denied by the Claimant. Rightly, he has referred to the well-known statements of principle, from the jurisprudence of the European Court of Human Rights, emphasising the importance in not fettering the media’s ability to report on matters of public interest. By way of recent example from the ECtHR’s decisions, in Ólafsson v Iceland(2018) 67 EHRR 19 [56] (with footnotes omitted): “The Court further reiterates that a general requirement for journalists systematically and formally to distance themselves from the content of a quotation that might insult or provoke others or damage their reputation is not reconcilable with the press’s role of providing information on current events, opinions and ideas, and that ‘punishment of a journalist for assisting in the dissemination of statements made by another person in an interview would seriously hamper the contribution of the press to discussion of matters of public interest and should not be envisaged unless there are particularly strong reasons for doing so’.” [142] This principle cannot be seen in isolation and needs to be properly understood in the context of Convention jurisprudence (particularly the importance attached, usually, to verifying defamatory allegations recognised in Axel Springer and Loutchansky). Seen in that context, it does not support a contention that, where a publisher is reporting allegations made by others, which can damage the reputation of another, a publisher is relieved of the onus to observe what the ECtHR has referred to as the “ordinary journalistic obligations”: Ólafsson [57]. [143] Publishers have at their disposal a variety of reporting techniques. For example, those who are unable or unwilling to take steps to verify defamatory allegations, and who wish potentially to rely upon a public interest defence to defend their publication, may well have to adopt a reporting technique that reduces the overall defamatory impact (for example the inclusion of statements that are effective in indicating that the publisher is not adopting the allegations). Alternatively (where the circumstances permit), the publisher might be able to present the allegations as part of an accurate and impartial account of a dispute to which the claimant was a party. In that latter respect, although the publisher is likely, by reason of s4(3), thereby to be relieved of the need to take steps to verify the allegations, s/he will nevertheless be required to obtain and publish the other side of the dispute. These are examples to demonstrate the sort of issues that a publisher is likely to have to consider when deciding what technique of reporting is chosen. Difficult questions of judgment may arise, for example, the extent to which it is necessary to include defamatory allegations against others in an article which otherwise makes a significant contribution to a matter of public interest. If a journalist or publisher can demonstrate that s/he has carefully considered the necessity for, and proportionality of, the harm to the reputations of those included in the publication, then a Court is likely to accord due weight to that assessment. Ultimately, in each case where a defendant relies upon a defence under s4, the Court has to make an assessment of all the circumstances and to make due allowance for proven exercise of editorial judgment.”
“I continue to maintain a credible network of sources within the ISI and the military, including but not limited to the political and bureaucratic circles of Pakistan”
“This report sets out how Arshad Sharif was tortured and killed and how ISI officers were linked to that incident, how he was hunted in Pakistan, the fake police case against him, how he tried to flee to Dubai and [was] then forced to leave there as well. It is no longer a conspiracy theory to state that the ISI was involved in this killing, it has now been made official by a government report.”
“Although the FFT does not overtly state that the ISI was involved in the killing of Arshad Sharif, one would not expect the FFT to do that, and the FFT has nevertheless ‘made this official’ by the fact findings that it has made in the Report”
“The transnational roles of characters in Kenya, Dubai and Pakistan in this assassination cannot not be ruled out. Both the members of the FFT have a considered understanding that it is a case of planned targeted assassination with transnational characters rather than a case ofmistaken identity.”
“The Claimant uses his official role for implementing the illegal and extrajudicial agenda of the military junta” and “This is confirmed by a tweet by the ex-head of the ISI, General Asad Durrani. I exhibit this tweet …”
“Amnesty International and other human rights groups have expressed direct concern over the disappearances of so many journalists, activists and politicians”
“The article showcases a larger-than-life image of Pakistan’s Intelligence agencies highlighting their role in the domestic politics of Pakistan, by understanding the Inter-Service Agencies (ISI), objectives and machinations as well as their domestic political role play. This is primarily carried out by subverting the political system through various means, with the larger aim of ensuring an unchallenged Army rule. In the present times, meddling, muddling and messing in, the domestic affairs of the Pakistani Government falls in their charter of duties, under the rubric of maintenance of national security. Its extra constitutional and extraordinary powers have undoubtedly made it the potent symbol of the ‘Deep State’.”
“The aim of this paper is to examine the ISI role in Pakistani politics during the post-Zia period which begins from September 1988 till the late 1990s.”
“The theoretical framework conceived three models of intelligence agencies namely (a) bureau of domestic intelligence (b) political police (c) independent security state. The ISI would fall under the category of an independent security state with the following characteristics. It lacks external controls and differs from the political police because its goals are determined by agency officials and are likely to differ from that of the political elite. Importantly, agency officials rather than elected officials direct its operations. The rationale for the ISI turning into an 'invisible government' has much to do with Pakistan being a 'weak state' which depends on a strong state apparatus to compensate for the problem of ideology … Former Prime Minister Nawaz Sharif successfully used the ISI to collect evidence of corruption by political rivals like Benazir Bhutto and other bureaucrats involved in major contracts with foreign companies. The intelligence agencies have played a frontline role in the struggle for power between the PPP and the PML (N). So much so, the political leadership in the post-Zia period has not really used these intelligence agencies for promoting good governance; it has instead only used them in their internecine warfare which has contributed to instability and led to a crisis of governance in the country. The import of the ISI wielding power in the country has a strong bearing on Islamabad's national security and foreign policy. It is a major decision influencing element in the security and foreign policy formulation process and tends to adopt an anti-India policy … The other aspect of ISI involvement in domestic politics is its linkages with Islamic fundamentalist groups which are anti-India in character … This relationship between the ISI and fundamentalists, fostered among other objectives on anti-India interests, clearly characterises a close-minded approach to any improvement in relations with India.”
“20. The general principles were reviewed and re-stated by the Court of Appeal in John v MGN Ltd[1997] QB 586 . A jury had awarded Elton John compensatory damages of£75,000 and exemplary damages of£275,000 for libel in an article that suggested he had bulimia. The awards were held to be excessive and reduced to£25,000 and£50,000 respectively. Sir Thomas Bingham MR summarised the key principles at pages 607-608 in the following words: 'The successful plaintiff in a defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must [1] compensate him for the damage to his reputation; [2] vindicate his good name; and [3] take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the appropriate damages for injury to reputation the most important factor is [a] the gravity of the libel; the more closely it touches the plaintiff's personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be. [b] The extent of publication is also very relevant: a libel published to millions has a greater potential to cause damage than a libel published to a handful of people. [c] A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that [d] compensatory damages may and should compensate for additional injury caused to the plaintiff's feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way. Although the plaintiff has been referred to as "he" all this of course applies to women just as much as men.' 21. I have added the numbering in this passage, which identifies the three distinct functions performed by an award of damages for libel. I have added the lettering also to identify, for ease of reference, the factors listed by Sir Thomas Bingham. Some additional points may be made which are relevant in this case: (1) The initial measure of damages is the amount that would restore the claimant to the position he would have enjoyed had he not been defamed: Steel and Morris v United Kingdom (2004) 41 EHRR [37], [45]. (2) The existence and scale of any harm to reputation may be established by evidence or inferred. Often, the process is one of inference, but evidence that tends to show that as a matter of fact a person was shunned, avoided, or taunted will be relevant. So may evidence that a person was treated as well or better by others after the libel than before it. (3) The impact of a libel on a person's reputation can be affected by: a) Their role in society. The libel of Esther Rantzen was more damaging because she was a prominent child protection campaigner. b) The extent to which the publisher(s) of the defamatory imputation are authoritative and credible. The person making the allegations may be someone apparently well-placed to know the facts, or they may appear to be an unreliable source. c) The identities of the publishees. Publication of a libel to family, friends or work colleagues may be more harmful and hurtful than if it is circulated amongst strangers. On the other hand, those close to a claimant may have knowledge or viewpoints that make them less likely to believe what is alleged. d) The propensity of defamatory statements to percolate through underground channels and contaminate hidden springs, a problem made worse by the internet and social networking sites, particularly for claimants in the public eye: C v MGN Ltd (reported with Cairns v Modi at[2013] 1 WLR 1051 ) [27]. (4) It is often said that damages may be aggravated if the defendant acts maliciously. The harm for which compensation would be due in that event is injury to feelings. (5) A person who has been libelled is compensated only for injury to the reputation they actually had at the time of publication. If it is shown that the person already had a bad reputation in the relevant sector of their life, that will reduce the harm, and therefore moderate any damages. But it is not permissible to seek, in mitigation of damages, to prove specific acts of misconduct by the claimant, or rumours or reports to the effect that he has done the things alleged in the libel complained of: Scott v Sampson(1882) QBD 491 , on which I will expand a little. Attempts to achieve this may aggravate damages, in line with factor (d) in Sir Thomas Bingham's list. (6) Factors other than bad reputation that may moderate or mitigate damages, on some of which I will also elaborate below, include the following: a) "Directly relevant background context" within the meaning of Burstein v Times Newspapers Ltd[2001] 1 WLR 579 and subsequent authorities. This may qualify the rules at (5) above. b) Publications by others to the same effect as the libel complained of if (but only if) the claimants have sued over these in another defamation claim, or if it is necessary to consider them in order to isolate the damage caused by the publication complained of. c) An offer of amends pursuant to theDefamation Act 1996 . d) A reasoned judgment, though the impact of this will vary according to the facts and nature of the case. (7) In arriving at a figure it is proper to have regard to (a) Jury awards approved by the Court of Appeal: Rantzen 694, John, 612; (b) the scale of damages awarded in personal injury actions: John, 615; (c) previous awards by a judge sitting without a jury: see John 608. (8) Any award needs to be no more than is justified by the legitimate aim of protecting reputation, necessary in a democratic society in pursuit of that aim, and proportionate to that need: Rantzen v Mirror Group Newspapers (1986) Ltd[1994] QB 670 . This limit is nowadays statutory, via theHuman Rights Act 1998 .”
“The authorities suggest that the Court should have regard to other awards made by Judges and/or approved by the Court of Appeal, in respect of comparable libels”
“comparable awards … are … of limited assistance only because circumstances vary so much from one case to another”
“(1) Where a court gives judgment for the claimant in an action for defamation the court may order the defendant to publish a summary of the judgment. (2) The wording of any summary and the time, manner, form and place of its publication are to be for the parties to agree. (3) If the parties cannot agree on the wording, the wording is to be settled by the court. (4) If the parties cannot agree on the time, manner, form or place of publication, the court may give such directions as to those matters as it considers reasonable and practicable in the circumstances. (5) This section does not apply where the court gives judgment for the claimant undersection 8(3) of the Defamation Act 1996 (summary disposal of claims).”
“239. The purpose of this section is to provide a remedy that will assist the claimant in repairing the damage to his reputation and obtaining vindication. Orders under the section are not to be made as any sort of punishment of the defendant. 240. Orders under s12 are discretionary both as to whether to order the publication of a summary and (if the parties do not agree) in what terms and where. Exercising the power to require a defendant to publish a summary of the Court’s judgment is an interference with the defendant’s Article 10 right. As such, the interference must be justified. The interference may be capable of being justified in pursuit of the legitimate aim of “the protection of the reputation or rights of others”