The same river twice?: Jameel v Wall Street Journal Europe

Communications Law

Volumn 12, Issue 2, 2007, Pages 52-59

  Scott, Andrew ^a  

^a LONDON SCHOOL OF ECONOMICS   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34249315855     PISSN: 17467616     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (129)

1. Reynolds v Times Newspapers Ltd (HL) [1999] 4 All ER 609;
2. [2001 ] 2 AC 127.
3. Loveland (1998), "The Constitutionalisation of Political Libels in English Common Law', Public Law, 633-46.
4. See, for example, Robertson (1999), 'Tiptoeing towards free speech' Guardian, 29 October; Gibb and Kennedy (1999), 'Lords offer press a stronger hand', The Times, 29 October.
5. Williams (2000), 'Defaming politicians: the not so common law', MLR, 63, 748-56; Loveland (2000), 'Reynolds v Times Newspapers in the House of Lords', Public Law, 351-57;
6. Trindade (2000), 'Defamatory statements and political discussion', LQR, 116, 185-91.
7. Jameel v Wall Street Journal Europe [2006] UKHL 44.
8. Gibbons (1996), 'Defamation reconsidered', Oxford J Legal Studies, 16(4), 587-615, 587.
9. Bayfield (1997), Defamation Law and Practice. London: FT Law and Tax Series;
10. Searls and Lloyd (1999), 'The case for a public figure defence', Ent LR, 10(1), 1-4, 2.
11. per Lord Keith, in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534, 548.
12. Barendt (1993), 'Libel and freedom of speech in English law', Public Law, 449-64, 456.
13. Schauer (1980),' Social foundations of the law of defamation: a comparative analysis', JMLP, 1, 3-19, 11.
14. Barendt et al (1997), Libel and the Media: The Chilling Effect. Oxford: Clarendon Press. This effect was gradated; while national newspapers considered the law 'irksome', smaller media institutions, such as magazines, book publishers and the regional press, often felt 'acutely vulnerable' (183).
15. ibid, 191.
16. Gibbons, supra, n 6, 587.
17. Barendt, supra, n 9;
18. Loveland (1997), 'Reforming libel law: the public law dimension', ICLQ, 46, 561-585.
19. per Lord Keith, Derbyshire County Council v Times Newspapers Ltd [1993] 2 WLR 449, 456-58.
20. English law was derided as 'repugnant' by the US Maryland State Appeals Court in the case of Telnikoffv Mautsevich (unreported, 1997) -
21. see: Searls and Lloyd, supra, n 7.
22. See, for example, Lingens v Austria (1986) 8 EHRR 407, para 42;
23. Castells v Spain (1992) 14 EHRR 445, and Oberschlick v Austria (1991) 19 EHRR 389.
24. Loveland, supra, n 2.
25. See supra, n 5, para 38.
26. The case had arisen after The Sunday Times published an article that chronicled the demise of the coalition government in Ireland in November 1994 (Ruddock and Burns (1994), 'Goodbye Gombeen Man', The Sunday Times, 20 November). The plaintiff, Albert Reynolds, had been the erstwhile Taoiseach. The article alleged that Reynolds had lied to both the Dáil and his former coalition partners. The politician was moved to sue for defamation, but while the jury agreed that he had been libelled it refused to award any damages. The judge, Mr Justice French, later altered the award to one pence, and ordered Reynolds to pay the defendants' costs as from the date of payment into court. Reynolds appealed seeking a new trial on the basis that the judge had erred in his summing-up. The defendants cross-appealed, raising questions as to the defence of qualified privilege and costs.
27. per Stephenson LJ, in Blackshaw v Lord [1984] 1 QB 1, 27.
28. See further, Lester (1999), 'Private lives and public figures: freedom of political speech in a democratic Society', CL, 4(2) 43-50.
29. Rimell (2000), 'A new public interest defence for the media?: The House of Lords' decision in Reynolds v Times Newspapers Ltd", Ent LR, 11(2), 36-38, 37.
30. [1998] 3 All ER 961, 1006.
31. per Lord Nicholls, supra, n 1, 619.
32. ibid, 625.
33. ibid, 623.
34. ibid, 640.
35. ibid.
36. ibid, 626.
37. ibid.
38. ibid.
39. The issue of whether there needed to be a retrial on the facts - see supra, n 1, 216 (per Lord Steyn) and 237 (per Lord Hope).
40. See supra, n 5, para 105.
41. Loveland (2000), 'A new legal landscape: libel law and freedom of political expression in the United Kingdom', EHRLR, 476-92;
42. (2003), 'The ongoing evolution of Reynolds privilege in domestic libel law', Ent LR, 14(7), 178-83.
43. Williams (1998), 'Defamation and public interest speech', CL, 3(6), 217-19, 218.
44. Horrocks v Lowe [1975] AC 135. This entails either of two things: that a publisher did not have an honest belief in the truth of what was published (that (s)he either knew that the statement was untrue, or was reckless as to its truth or falsity), or that the defendant's main purpose in publishing was not in exercise of the duty to provide the information, but in furtherance of some other disreputable motive.
45. Loveland, supra, n 2, 637.
46. See also, Mitchell (1999), 'Malice in qualified privilege', Public Law, 328-40.
47. For example, the tone of the article, or whether the plaintiff was offered any substantial opportunity to present an alternative interpretation of events.
48. Spilsbury (2000), 'Bloodhounds and watchdogs: qualified privilege, malice and the publication of material in the public interest', Ent LR, 11 (3), 43-47, 46.
49. See supra, n 1, 623.
50. ibid.
51. ibid, 626. That corpus began in the Reynolds case itself, given that the newspaper group was deemed not to have acted under the tenets of responsible journalism. Lord Nicholls was particularly critical of the 'serious allegations by the newspaper, presented as statements of fact but shorn of all mention of Mr Reynolds considered explanations' (627). Furthermore, in Grobbelaar v News Group Newspapers Ltd., see supra, n 143, the highly emotive tone of, and unambiguous allegations of serious criminal conduct contained within, a series of articles, led Simon Brown LJ to take the view that the newspaper had forfeited the right to rely on qualified privilege.
52. ibid.
53. Whether this reflects a more general lack of esteem on the part of judges for the media is a moot point - see Dodds (2005), 'QC Calls for rapprochement between media and judiciary', Media Lawyer, 5 December.
54. The article was reproduced in large part in the speech of Lord Hoffman - see supra, n 5, para 40.
55. ibid, para 4.
56. [2004] EWHC 37.
57. See Cram (2004), 'Reducing uncertainty in libel law after Reynolds v Times Newspapers? Jameel and the unfolding defence of qualified privilege', Ent LR, 15(5), 147-50.
58. [2005] EWCA Civ 74.
59. See supra, n 5, para 38.
60. As in Reynolds, there was some divergence of view on the question of whether the case should be returned for retrial or whether it could be concluded definitively in the House of Lords. The majority took the latter view - see ibid, paras 36 (per Lord Bingham) 89 (per Lord Hoffman), 112 (per Lord Hope), and 143 (per Lord Scott).
61. per Lord Phillips MR, Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783, 806.
62. See supra, n 5, para 30.
63. ib id, paras 130-31.
64. ibid, para 128. These cases included Toogood v Spyring 149 ER 1044, Whiteley v Adams (1863) 15 CB (NS) 392, and Stuart v Bell [1891] 2 QB 341.
65. ibid, para 128. This involved a reflection on Adam v Ward [1917] AC 309.
66. ibid, para 132.
67. ibid, para 133.
68. McCartan Turkington Breen v Times Newspapers Ltd [2001] 2 AC 277, 301.
69. See supra, n 5, para 107.
70. ibid, para 43.
71. ibid, paras 46 and 146 respectively.
72. ibid, para 147.
73. ibid.
74. ibid.
75. per Lord Bingham, ibid, para 31.
76. per Lord Hoffman, ibid, para 49.
77. per Lord Scott, ibid, para 138.
78. ibid, para 147.
79. per Lord Scott, ibid, para 138. In Reynolds, the Court of Appeal (per Lord Bingham) had defined the 'public interest' widely to include 'matters relating to the public life of the community and those who take part in it, including... activities such as the conduct of government and political life, elections and public administration, ...[and] more widely... the governance of public bodies, institutions and companies which give rise to a public interest in disclosure, but excluding matters which are personal and private, such that there is no public interest in their disclosure' (supra, n 24, 1004).
80. per Lord Bingham, ibid, para 34.
81. ibid, para 108. See further the concurring views of Lords Hoffman (para 51) and Bingham (para 34).
82. Lord Hoffman was of the view that 'allowance must be made for editorial judgment', and that 'the fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence' (ibid, para 51).
83. See also, para 108 (per Lord Hope).
84. per Lord Hoffman, ibid, para 52.
85. per Lord Scott, ibid, para 139.
86. ibid., para. 48. See also, para 108 (per Lord Hope).
87. per Lord Hoffman, ibid, para 57. Moreover, its use by Mr Justice Eady on two previous occasions had already been criticised by the Court of Appeal in Loutchansky v Times Newspapers Ltd (Nos 2-5) [2002] QB 783, 811.
88. per Lord Bingham, ibid, para 33.
89. ibid, paras 33(Lord Bingham) and 56 (Lord Hoffman).
90. ibid.
91. ibid, para 55.
92. ibid, para 106
93. ibid, para 107.
94. See [WWW] http://www.pcc.org.uk/cop/practice.html (accessed 10 January 2007).
95. per Lord Hoffman, supra, note 5, para 55.
96. ibid, para 107. For a discussion on this point, see Rozenburg (2004), Privacy and the Press. Oxford University Press, ch 7.
97. ibid, para 109.
98. Clearly, as noted above, a minority of their Lordships considered that it was unnecessary to make this final link.
99. per Baroness Hale, supra, n 5, para 146.
100. ibid., paras 138 (Lord Scott) and 50 (Lord Hoffman).
101. per Lord Hoffman, ibid, para 37.
102. per Lord Hoffman, ibid, para. 86; per Lord Scott, para 142. Moreover, Lord Hoffman noted that the newspaper's evidence that the US Treasury had in fact acquiesced in the publication of the information remained unchallenged (paras 78, 87 and 89), while Baroness Hale considered that the story was one that the Saudi Arabian state was bound to deny for internal reasons (para 148).
103. ibid, para 142.
104. ibid, para 6.
105. ibid.
106. ibid, para 31.
107. ibid, para 49.
108. ibid, para 148. Lord Scott concurred that the article included 'information of high importance and public interest not only, or even particularly, in this country but worldwide' (para 143).
109. ibid, paras 60 (per Lord Hoffman) and 140 (per Lord Scott).
110. ibid, para 80.
111. See supra, n 1, 205.
112. See supra, n 5, para 82.
113. ibid, para 85.
114. ibid, para 35.
115. ibid, pan 141.
116. ibid, para 78.
117. ibid, para 143.
118. ibid, para 35.
119. ibid, para. 151.
120. See supra, n 5, para 150.
121. Schilling (2000), 'The Americanisation of English libel laws', Entertainment Law Review, 11(3), 48-49;
122. Price and Melville-Brown (2006), 'Another, more subjective, side of the argument', The Times, 24 October;
123. Rampton (2006), 'Lowering the hurdles - for serious journalism', The Times, 24 October.
124. Coad (2006), 'Reynolds defence is reviewed by the House of Lords: Jameel v Wall Street Journal', Swan Turton e-Bulletin, 12 October.
125. Vassall-Adams (2006), 'A resounding victory for newspapers', The Times, 11 October;
126. Dyer (2006), 'Law lords give media shield against libel in landmark ruling', Guardian, 12 October;
127. Dodds (2006), 'Law Lords' decision "Redresses the Balance'", Media Lawyer, 11 October.
128. Dodds (2005), 'Reynolds defence "has cut number of libel claims'", Media Lawyer, 5 December.
129. See supra, n 5, para 138.