COURT OF APPEAL (CIVIL APPEALS DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Hon Mr Justice Eady
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE JONATHAN PARKER
| DOW JONES & CO INC
|- and -
|YOUSEF ABDUL LATIF JAMEEL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
James Price QC & Justin Rushbrooke (instructed by Carter-Ruck) for the Respondent
Crown Copyright ©
Lord Justice Phillips MR :
This is the judgment of the Court
"The Defendant will contend that Article 10 of the European Convention on Human Rights precludes [the Claimant] from relying on any legal presumption of damage to establish standing, injury or harm."
"WAR ON TERROR
List of Early al Qaeda Donors Points to Saudi Elite, Charities
By GLENN R. SIMPSON
Staff Reporter of THE WALL STREET JOURNAL
WASHINGTON A cache of al Qaeda documents seized last year by U.S. agents in Bosnia identifies some of Saudi Arabia's richest and most influential families as among the first financial supporters of Osama bin Laden, and shows how al Qaeda used charitable arms of the Saudi government.
An account of the roots of al Qaeda found on a computer used by a suspected al Qaeda front group contains a 1988 memorandum listing 20 Saudi financial backers of Mr bin Laden "the Golden Chain," as the bin Laden organization called it. The list includes the families of three billionaire Saudi banking magnates, several top industrialists and at least one former government minister.
The Golden Chain list, which doesn't indicate the size of the donations, was drawn up at a time when supporting the Afghan revolt against Soviet invaders Mr bin Laden's cause at the time was a top U.S. foreign policy objective, as well as a Saudi national cause with deep patriotic and religious overtones. The list doesn't show any continuing support for al Qaeda after the organization began targeting Americans, but a number of the Saudis on it have been under scrutiny by U.S. officials as to whether they have supported terrorism in recent years."
"See the list of donors originally filed under seal in U.S District Court for the Northern District of Illinois (United States of America v Enaam Arnout). The list was seized from the Benevolence International Foundation, an alleged al Qaeda front. According to a court filing, "BIF possessed a handwritten draft list of people referred to within al Qaeda as the "Golden Chain", wealthy donors to mujahdaeen efforts. At the top of the list is a Koranic verse stating 'And spend for God's cause'. The list contains twenty names, and after each name is a parenthetical, likely indicating the person who received the money from the specified donor. "
"6.1 that the Claimant had been among the first financial supporters of the notorious terrorist Osama bin Laden and al Qaeda;
6.2 that there were reasonable grounds to suspect that the Claimant had continued thereafter to provide financial support to Osama bin Laden and al Qaeda, that he had financially supported such terrorism in recent years, and in particular that he supported those responsible for the September 11 attacks."
"We understand that WSJ.com has several thousand subscribers within the English jurisdiction. Our client's reputation in England is of the utmost importance to him. provided you agree to remove the Golden Chain list from your web site within 7 days, our client will not seek from you any compensation or the legal costs which he has had to incur in consequence of this matter."
"The Claimant will (if necessary) invite the inference that a substantial number of readers of the main article as set out above will have followed the said hyperlink and read the page to which it led."
"Mr Price does not accept that Ms Downey's evidence should be taken at face value or that more evidence will not be available in the light of disclosure and cross-examination. But for present purposes, he is prepared to respond to Mr Millar's arguments on the factual assumptions he wishes to make. He submits that the conclusions which Mr Millar seeks to draw from those factual assumptions are, in any event, fallacious and/or wrong in law."
The argument before us has also proceeded on the premise that Dow Jones case on the size of publication is correct.
The appeal in relation to the presumption of damage
English law prior to 1 October 2000
"The defendant, who, on the application of a stranger, delivers to him the writing which libels a third person, publishes the libellous matter to him, though he may have been sent for the purpose of procuring the work by that third person. So far as in him lies, he lowers the reputation of the principal in the mind of the agent, which, although that of an agent, is as capable of being affected by the assertions as if he were a stranger. The act is complete by the delivery: and its legal character is not altered, either by the plaintiff's procurement or by the subsequent handing over of the writing to him."
"The only idiosyncratic aspect arising from the law in England and Wales is the assumption of damage. I do not recognise this as a jurisdictional point. Whether or not there may be detected a publishee in England who both knew the plaintiff and read and understood the French evening newspaper may well arise in the course of the action and be relevant to the assessment of damages. In my judgment, however, to restrict the exercise of jurisdiction to cases where the existence of such a person is established would not be correct."
He went on to say that the judgment of Coleridge J in Brunswick v Harmer supported this proposition.
"Since under English law there is a presumption of damage in libel cases, the plaintiffs did not have to adduce evidence of damage arising from the publication of the article in question"
His Lordship went on to hold at p. 983:
"Where English law presumes the publication of a defamatory statement is harmful to the person defamed without proof of special damage thereof that is sufficient for the application of article 5(3). An award of even nominal damages is recognition of some harm having been suffered by the plaintiff."
"If words are used which impute discreditable conduct to my friend, he has been defamed to me, although I do not believe the imputation and may even know it is untrue"
Lord Morris approved this statement in Morgan v Oldhams Press Ltd  1 WLR 1239 at 1253.
Has the Human Rights Act changed the law?
i) Freedom of expression, as protected by Art 10(1), is one of the essential foundations of a democratic society (Handyside v UK (1976) 1 EHRR 737), accordingly any restriction must be convincingly established under Art 10(2), the burden of proof being on the party seeking to justify the interference (Sunday Times v UK (No 2) (1991) 14 EHRR 229);
ii) Restrictions directed against the media should be particularly closely scrutinised, since the media have a special place in any democratic society as purveyor of information and public watchdog (eg Prager and Oberschlick v Austria (1995) 21 EHRR 245 (para 34));
iii) Where there has been an interference with the Art. 10(1) right, it is not sufficient that its subject-matter fell within a particular category or was caught by a legal rule formulated in general or absolute terms; the Court has to be satisfied that the interference was necessary having regard to the facts and circumstances prevailing in the specific case before it (Sunday Times v UK (1979) 2 EHRR 245, para 65);
iv) In reviewing the necessity for the interference the Strasbourg Court will ask not only whether the standards applied by the national authorities were in conformity with Art 10 but also whether they based themselves on unacceptable assessment of the relevant facts (Zana v Turkey (1999) 27 EHRR 667, para 51).
Identification of the claimant
"Where the claimant is expressly identified by name, it is not necessary to produce evidence that anyone to whom the statement was published did identify the claimant"
He went on to hold that:
"The Claimant's name appears in the relevant passage of the words complained of, and that is sufficient for [Mr Price's] purposes."
No substantial tort and abuse of process
"in no sense can it be said that there is any substantial importation of these papers in England, or that the libel which is said to affect the plaintiff in England is anything but a very minor incident of the substantial publication in France."
Scott LJ added:
"I think that it would be ridiculous and fundamentally wrong to have these two cases tried in this country, on a very small and technical publication, when the real grievance of the plaintiff is a grievance against the widespread publication of the two papers in the respective countries where they are published."
"In my judgment once it is established that there has been an "English tort" that is to say that there has been a significant publication of prima facie defamatory matter concerning the plaintiff within the jurisdiction, the English courts have jurisdiction with regard to that English tort. Where the perpetrator of the tort is not within the jurisdiction but is abroad, then leave to serve process abroad under Order 11 is required and the fundamental principle identified by the House of Lords in The Spiliada applies. If there is a substantial complaint with respect to the English tort, having regard to the scale of the publication within the jurisdiction and the extent to which the plaintiff has connections with and a reputation to protect in this country as against the inconvenience to the defendant in being brought here to answer for his alleged wrong-doing then service of the writ abroad is to be ordered."
" I see no reason why such cases require to be subjected to a different pre-trial regime. It is necessary to apply the overriding objective even in those categories of litigation and in particular to have regard to proportionality. Here there are tens of thousands of pounds of costs at stake and several weeks of court time. I must therefore have regard to the possible benefits that might accrue to the claimant as rendering such a significant expenditure potentially worthwhile."
He added that the overriding objective's requirement for proportionality meant that he was bound to ask whether "the game is worth the candle". He concluded:
"I am afraid I cannot accept that there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources."
" the notion that Mr Berezovsky, a man of enormous wealth, wants to sue in England in order to secure the most precise determination of the damages appropriate to compensate him for being lowered in the esteem of persons in this country who have heard of him is something which would be taken seriously only by a lawyer. An English award of damages would probably not even be enforceable against the defendants in the United States: see Kyu Ho Youm, "The Interaction Between American and Foreign Libel Law: U.S. Courts Refuse to Enforce English Libel Judgments" (2000) 49 I.C.L.Q. 131. The common sense of the matter is that he wants the verdict of an English court that he has been acquitted of the allegations in the article, for use wherever in the world his business may take him. He does not want to sue in the United States because he considers that New York Times v Sullivan (1964) 376 U.S. 254 makes it too likely that he will lose. He does not want to sue in Russia for the unusual reason that other people might think it was too likely that he would win. He says that success in the Russian courts would not be adequate to vindicate his reputation because it might be attributed to his corrupt influence over the Russian judiciary."
"The plaintiffs are forum shoppers in the most literal sense. They have weighed up the advantages to them of the various jurisdictions that might be available and decided that England is the best place in which to vindicate their international reputations. They want English law, English judicial integrity and the international publicity which would attend success in an English libel action."
Lord Hoffmann concluded:
"My Lords, I would not deny that in some respects an English court would be admirably suitable for this purpose. But that does not mean that we should always put ourselves forward as the most appropriate forum in which any foreign publisher who has distributed copies in this country, or whose publications have been downloaded here from the Internet, can be required to answer the complaint of any public figure with an international reputation, however little the dispute has to do with England. In Airbus Industrie G.I.E. v Patel  1 AC 119 your Lordships' House declined the role of "international policeman" in adjudicating upon jurisdictional disputes between foreign countries. Likewise in this case, the judge was in my view entitled to decide that the English court should not be an international libel tribunal for a dispute between foreigners which had no connection with this country."
The claim for an injunction
"Dow Jones, as major American news organisation, will assert, if I can put it this way, to the last breath of its advocate, its freedom to report both in the US and worldwide two things. First of all, the fact of the existence of a document of major public importance (that is the list; the golden chain list itself) and, secondly, what the US Government has repeatedly said about it in public, having itself, that is the government, put the document into the public domain. I emphasize, we are not talking here, if I can put it that way, about the stray comments of a stray US attorney in the odd case as Mr Price tries to suggest. The golden chain is a key piece of factual history, re the development of international Muslim terrorism, and is referred to repeatedly, as I have said, in, for example, the 9/11 Commission Report. It is therefore now part of the currency of the public debate in the US and, indeed, therefore worldwide surrounding the 9/11 tragedy."