England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/11/2019

 


MR JUSTICE PUSHPINDER SAINI :

This judgment is divided into 4 sections as follows:

I. Overview: paras. [1-12]

II. Legal Principles: paras. [13-21]

III. The Competing Positions: paras. [22-27]

IV. Conclusion on Meaning: paras. [28-39]

Annexe: The WhatsApp transcript

I. Overview

1. This is the trial of a preliminary issue in a defamation action between the Claimant and the Defendant. The Claimant and the Defendant are both members of the Exeter Mosque ('the Mosque") community.
2. The Claimant is an academic, author, and expert on Middle Eastern conflict, counterterrorism, and security with particular reference to policy in relation Islamic State jihadists, and associated organisations. He regularly appears on major international television channels as a subject matter expert.
3. The Defendant is a successful self-employed businessman in the area of commercial property and clothing. His father, Shaheed Ul Hassan, is a Founder and Trustee of the Mosque and its related Cultural Centre. The Defendant's brother, Taha Hassan, is also a Trustee of the Mosque since 2017.
4. The publication in respect of which complaint is made was posted by the Defendant on a WhatsApp group made up of members of the Mosque. The posting was made at a time when there was ongoing a factional dispute relating to the administration of the Mosque. The Claimant and the Defendant (and his family members) are opposing parties in that dispute.
5. By Order dated 17 January 2019, Master McCloud directed the trial of a preliminary issue as to the meaning of the following statement ("the Statement") made by the Defendant in relation to the Claimant (referred to as "Talha") as part of that WhatsApp group discussion:

"We don't negotiate or mediate with terrorists. Are u guys still Muslim brotherhood? The is all their tactics. See u at the masjid Talha where I'll show u the video of ur uncontrollable and volatile character. You 're only talking of mediation because of the trouble you 're in already but public aren't fully aware yet. Your behaviour is enough for any peace loving neutral to know that you 're not all there. Get of your high horse and get on your bike."

(Spelling and syntax as in original.)

6. The Statement is part of a lengthy WhatsApp discussion (or chat) between a number of people between 18 January 2018 (23:53) and 19 January 2018 (22:06). I have annexed the transcript of part of the discussion to this judgment ("the Transcript").
7. I have omitted from the Transcript certain aspects which are lengthy and immaterial. In the Transcript the Defendant is sometimes referred to as "Anas Hassan". I emphasise that I have considered the entirety of the discussion and have annexed a shortened version in the interests of brevity and inclusion of only such content as will make it possible to follow my reasons below.
8. The Statement was part of a discussion within a substantial WhatsApp group (numbering, I am told, about 100 people, "the Group"). The identities of all the members are not known and the Group was created by a person who remains anonymous.
9. Very few members of the Group participated in the discussion but it was common ground before me that the Group included members of the Exeter Mosque who would have been aware of the broader factional dispute between the Claimant and the Defendant, and his family members, concerning administration and management of the Mosque.
10. As is not uncommon, when persons have not agreed to join a WhatsApp group (and have merely been non-consensually "joined in" through access to their mobile numbers) the longer transcript shows that many of the individuals that the creator of the Group had included within the Group left it during the course of what were clearly heated exchanges between the Claimant and the Defendant (and others).
11. In addition to the full transcript, I have also received a witness statement from the Claimant which (together with the pleadings and oral submissions) I have relied upon as providing the full context in which the Statement appeared.
12. The Claimant argued before me that comments made on the Group chat some weeks later by the Defendant (on 5 February 2018) were relevant on the issue of meaning of the Statement. I do not agree and have left those matters out of account.

II. Legal Principles

13. The approach to meaning in defamation actions was summarised by Lord Kerr in the Supreme Court in Stocker v Stocker [2019] UKSC 17, [25] where (having noted the use in the court below of dictionary definitions) he explained:

"Therein lies the danger of the use of dictionary definitions to provide a guide to the meaning of an alleged defamatory statement. That meaning is to be determined according to how it would be understood by the ordinary reasonable reader. It is not fixed by technical, linguistically precise dictionary definitions, divorced from the context in which the statement was made. "

14. As to the basic principles that should govern a court's approach in relation to this task, these were clearly and helpfully set out by Nicklin J in Koutsogiannis v The Random House Group Ltd [2019] EWHC 48 (QB) [11-12] where he explained (with internal citations omitted):

"11. The Court's task is to determine the single natural and ordinary meaning of the words complained of, which is the meaning that the hypothetical reasonable reader would understand the words bear. It is well recognised that there is an artificiality in this process because individual readers may understand words in different ways: Slim v Daily Telegraph Ltd [1968] 2 QB 157, 173D– E, per Lord Diplock.

12. The following key principles can be distilled from the authorities:

(i) The governing principle is reasonableness.

(ii) The intention of the publisher is irrelevant.

(iii) The hypothetical reasonable reader is not naïve, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. A reader who always adopts a bad meaning where a less serious or non-defamatory meaning is available is not reasonable: s/he is avid for scandal. But always to adopt the less derogatory meaning would also be unreasonable: it would be naïve.

(iv) Over-elaborate analysis should be avoided and the court should certainly not take a too literal approach to the task.

(v) Consequently, a judge providing written reasons for conclusions on meaning should not fall into the trap of conducting too detailed an analysis of the various passages relied on by the respective parties.

(vi) Any meaning that emerges as the produce of some strained, or forced, or utterly unreasonable interpretation should be rejected.

(vii) It follows that it is not enough to say that by some person or another the words might be understood in a defamatory sense.

(viii) The publication must be read as a whole, and any 'bane and antidote' taken together. Sometimes, the context will clothe the words in a more serious defamatory meaning (for example the classic "rogues' gallery" case). In other cases, the context will weaken (even extinguish altogether) the defamatory meaning that the words would bear if they were read in isolation (e.g. bane and antidote cases).

(ix) In order to determine the natural and ordinary meaning of the statement of which the claimant complains, it is necessary to take into account the context in which it appeared and the mode of publication.

(x) No evidence, beyond the publication complained of, is admissible in determining the natural and ordinary meaning.

(xi) The hypothetical reader is taken to be representative of those who would read the publication in question. The court can take judicial notice of facts which are common knowledge but should beware of reliance on impressionistic assessments of the characteristics of a publication's readership.

(xii) Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader.

(xiii) In determining the single meaning, the court is free to choose the correct meaning; it is not bound by the meanings advanced by the parties (save that it cannot find a meaning that is more injurious than the claimant's pleaded meaning)."

15. Where the statement is part of a debate, the whole of the debate is likely to be relevant context: Gatley on Libel & Slander, 12^th Ed., para. 3.30 at p.150. This must apply with particular force where the Claimant is an interlocutor in the debate.
16. Although I am considering publication in the WhatsApp medium, I have found useful the guidance given in Monroe v Hopkins [2017] EWHC 433 (QB); [2017] 4 WLR 68, by Warby J at para. 35 where be observed as follows in relation to tweets posted on Twitter:

"The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter."

17. To similar effect, in Monir v Wood [2018] EWHC (QB) 3525, Nicklin J observed (para. 90) that "Twitter is a fast moving medium. People will tend to scroll through messages relatively quickly." Nicklin J further explained : "It is very important when assessing the meaning of a Tweet not to be over-analytical. ... Largely, the meaning that an ordinary reasonable reader will receive from a Tweet is likely to be more impressionistic than, say, from a newspaper article which, simply in terms of the amount of time that it takes to read, allows for at least some element of reflection and consideration. The essential message that is being conveyed by a Tweet is likely to be absorbed quickly by the reader".
18. I have also found assistance in the decision of Eady J in Smith v ADVFN plc [2008] EWHC 1797 (QB) at paras. 13-16, where he considered the medium of bulletin boards and described communications in that forum as in the nature of a casual chat in a bar.
19. It seems to me that these points made by a number of experienced libel judges all apply with some force to the WhatsApp medium, although it differs in certain respects to Twitter and the bulletin boards.
20. In all determinations of meaning, the case law makes clear that one should avoid the type of close and over-analytical analysis which lawyers and judges usually undertake in other contexts concerned with language in more formal publications. That principle applies with even greater force to social media exchanges.
21. In short, elaborate analysis and parsing for theoretically or logically deducible meanings is not appropriate when dealing with a rapid conversational medium such as WhatsApp. The impressionistic approach is appropriate. I make these points at this stage because as I indicate below certain of the submissions of the parties appear to invite an analytical approach.

III. The Competing Positions

22. Having referred to the context concerning his long-running dispute with the management of the Exeter Mosque and the Defendant (and his family) as well as the exchanges in the Transcript both before and after the Statement, the Claimant argued that the meaning of the Statement was as follows:

(a) That the Claimant is a "terrorist", which is an imprisonable offence under the Terrorism Act 2000; the Terrorism Act 2006; the Anti-Terrorism, Crime and Security Act 2001; the Criminal Justice Act 2003; the Prevention of Terrorism Act 2005; the Counter-Terrorism Act 2008; the Counter-Terrorism and Security Act 2015; and other legislation that can lead to the Claimant's loss of liberty. The Defendant therefore imputed that the Claimant had committed crimes punishable with imprisonment.

(b) That the Claimant is a member of the Muslim Brotherhood organisation, considered a terrorist organisation by the UAE, Saudi Arabia, Egypt and Bahrain, further carrying the innuendo and implication that the Claimant is a terrorist and/or a member of Islamist political parties. These are words disparaging of the Claimant in his professional and academic life, and can severely impact his ability to conduct research and other necessary work relevant to his career in those countries.

(c) That the Claimant possesses an "uncontrollable, volatile character", with the innuendo and implication that he is violent.

(d) That the Claimant is in some kind of "trouble" that would be publicly damaging, with the innuendo and implication that the Claimant is involved in criminality.

(e) That the Claimant's behaviour is such that a disinterested party of good moral standing would believe him to be "not all there", with the innuendo and implication that the Claimant suffers from insanity and mental illness, which may lead to his being detained under a section 3 Mental Health Act treatment order, also leading to a loss of liberty. These are also words imputing a mental health disease.

23. Although the Defendant did not originally advance any positive case in his Defence as to meaning, he did helpfully advance such a case through his Counsel at trial. It was submitted that the meaning of the Statement complained of (in context) is that the Claimant has behaved in a highly unreasonable and aggressive manner, and has undisclosed links to the Muslim Brotherhood which make him an undesirable member of the Mosque community.
24. The Defendant relies upon a number of specific matters by way of context: (a) it was posted on a WhatsApp group made up of members of the Mosque's community; (b) there was at the time amongst those members a factional dispute relating to the administration of the Mosque in which the Claimant was a major protagonist; (c) antagonistic comments by the parties and others had been exchanged in the hours and minutes leading up to the statement complained of; and (d) the statement itself was subject to explanation and qualification by the Defendant in the minutes subsequent to its publication. The last point (d) was relied upon particularly strongly.
25. As to this last point, Counsel for the Defendant referred me to the fact that the Transcript shows that the Defendant was (it is argued) quick to distance himself from the allegation that the Claimant was a terrorist in any "literal sense". It is argued that the Defendant pressed the Claimant to engage with him in relation to his purported support for the Muslim Brotherhood and that the Defendant sought to decouple the "terrorist" allegation from the "Muslim Brotherhood" allegation. It was said that this was done by the Defendant distancing himself from the former while, in Counsel's words, "doubling-down" on the latter. Counsel prayed in aid the well-known "bane and antidote" approach.
26. Finally, the Defendant relied on the fact that although the Muslim Brotherhood is a proscribed terrorist organisation (in Egypt, Saudi Arabia, the UAE and Bahrain) this fact alone is not sufficient to make an allegation of association with the Muslim Brotherhood tantamount to an allegation that the Claimant was a terrorist.
27. It was submitted to me that the designation of groups as terrorist groups by certain states is a matter of religious and political doctrine and is not a safe basis for drawing any conclusions as to whether such groups conduct what would be understood as terrorism for domestic UK purposes.

IV. Conclusion on meaning

28. Having considered the relevant context as well as the specific nature of the medium in issue, I do not accept either the Claimant's or the Defendant's ultimate submissions as to the meaning of the Statement. The position is much simpler as I set below. I have also considered the entirety of the Transcript and not just the Statement in isolation.
29. There are some aspects of the parties' positions which I accept as correct, but both seem to me to suffer the vice of an overly elaborate analysis. That risks losing sight of the natural and ordinary meaning of the Statement to a hypothetical reasonable reader, who will of necessity consider only briefly a rapid series of exchanges in a conversational medium.
30. In my judgment, the meaning of the Statement is straightforward and I am guided by the immediate impression the Statement (as part of the WhatsApp exchange in its entirety) made on me without reference to the arguments advanced by each party.
31. The meaning I find in relation to the Claimant is:

(i) The Claimant is or was a terrorist associated with the Muslim Brotherhood and his behaviour is typical of that organisation;

(ii) The Claimant has behaved in an aggressive and unreasonable manner;

(iii) The Claimant is concerned with using the mediation route because he is guilty of some form of wrongdoing of which the public do not yet know; and

(iv) The Claimant is an undesirable member of the Mosque community.

32. I can state my reasons for my conclusions shortly. The starting point must be the fact that just before the Statement was made, a Mr. Nasir Ahmed (referred to as "Nasir"), a mutual friend or acquaintance of both the Claimant and the Defendant, appears to have offered to "mediate" the dispute (19 January 2018 between 10:41 and 11:00). It was immediately after this suggestion of mediation that the Defendant said as part of the Statement (at 11:11) that "We don't negotiate or mediate with terrorists. Are u guys still Muslim brotherhood? The [sic] is all their tactics…"".
33. There is no escape from this language and the direct tying of the Claimant to terrorism and the Muslim Brotherhood. Although the Defendant later in the chat sought to downplay the "terrorist" aspect of the Statement (when again repeating the Muslim Brotherhood allegation), in my judgment the natural and ordinary meaning of the words is that the Claimant is a terrorist (or was such) and has some form of Muslim Brotherhood affiliations.
34. The later chats which by way of "context" are said to downplay the "terrorist" aspect do not in my view achieve that claimed downplaying. This is because of the very fact of repetition of the claimed Muslim Brotherhood association. I do not accept the link between accusation of terrorism and association with that organisation was severed. I also take judicial notice of the uncontroversial fact that within the Arab world many states regard the Muslim Brotherhood as a terrorist organisation. Whether it is proscribed in the United Kingdom does not seem to me to be relevant.
35. In my judgment, a non-naïve and reasonable person who was not unduly suspicious would tie the repeated claimed associations of the Claimant with the Muslim Brotherhood to an association with terrorism when the word "terrorists" (in specific reference to the Claimant) had been used a few minutes earlier. It is only through a lawyer's technical and surgical separation of different phrases that one can argue to the contrary and that approach fails to reflect the impressionistic way in which the chat would be read.
36. Notably at no point did the Defendant seek to withdraw anything he had said earlier or apologise for using the word "terrorists", but he merely sought to backtrack to avoid losing face amongst the Group (notably always however with the repeated assertion that the Claimant was in any event somehow linked in some way to the Muslim Brotherhood).
37. I also consider that the meaning of the further words in the Statement is that the Claimant is an aggressive person who is seeking to mediate the dispute because he is concerned that revelations about him will become public.
38. Finally, I do not consider saying that the Claimant was not "all there" meant that the Claimant was suffering from some mental health illness as pleaded by the Claimant. It was an off-the-cuff remark. It does not carry the sophistication of the detailed mental health law meanings attributed to it by the Claimant. I do not believe anyone would have understood the statement to mean the Claimant was subject to detention under mental health law or that the Claimant was insane.
39. I will hear the parties as to further directions for trial and consequential orders, if they cannot agree these by consent.
40. Finally, it is clear to me that this is a dispute which should readily be capable of resolution by ADR, and I would respectfully encourage the parties in that direction.

ANNEXE TO JUDGMENT

19/01/2018, 10:53	Unknown: Salam brother. You left after you kindly offered to mediate these concerns
19/01/2018, 10:54	Unknown: I sure they will want salaam for Allah pleasing
19/01/2018, 10:57	Nasir Ahmed: W/S ok...
19/01/2018, 10:59	Nasir Ahmed: Firstly I didn't offer but was asked. However I would only do this if both parties agree to it.
19/01/2018, 10:59	Nasir Ahmed: I am sure I will see most of them at mosque later today. Take care
19/01/2018, 10:59	Tallha Abdulrazaq: I agree
19/01/2018, 11:00	Nasir Ahmed: Ok brother
19/01/2018, 11:00	Tallha Abdulrazaq: We have always just wanted our name cleared and justice served. See you at the masjid inshallah
19/01/2018, 11:00	Nasir Ahmed: In Shah Allah
19/01/2018, 11:06	Ibrahim Khalil: Asalamualaikum bro, I'm not in Exeter at the moment but as I said in my Whatsapp messages to you I'd like to go over some of the things you've mentioned. Could you please get back to me as I still have a few questions I'd like to ask
19/01/2018, 11:11	M.N. Hassan: We don't negotiate or mediate with terrorists. Are u guys still Muslim brotherhood? The is all their tactics. See u at masjid Talha where I'll show u the video of ur uncontrollable volatile character. You're only talking of mediation because of the trouble you're in already but public aren't fully aware yet. Your behaviour is enough for any peace loving neutral to know that you're not all there. Get of your high horse and get on your bike
19/01/2018, 11:14	I wish there was another Masjed to go for Pray. I hope all of you understand my thoughts.?
19/01/2018, 11:14	Tallha Abdulrazaq: Defamation. Again?
19/01/2018, 11:15	Tallha Abdulrazaq: Thank you, Mohammed Malik Nibras Anas Hassan
19/01/2018, 11:15	Tallha Abdulrazaq: This is what you want the community to believe, that I am a terrorist. This is what your father and others spread about me
19/01/2018, 11:16	Tallha Abdulrazaq: This will be shown to the relevant authorities as not only hate speech and incitement for criminal harassment, but also raised with other relevant legal authorities
19/01/2018, 11:16	M.N. Hassan: You want to send your nephews to a masjid where you lied about the Imam at court. Astaghfirullah. You and your brothers never went to masjid school but now you want your nephews to go to a masjid you and your cronies want to destroy
19/01/2018, 11:18	Tallha Abdulrazaq: I'm placing you on legal notice that I will pursue you for defamation
19/01/2018, 11:19	M.N. Hassan: Are u still Muslim brotherhood?
19/01/2018, 11:19	M.N. Hassan: You and your brother always used to lecture on them. You forget we grew up knowing each other
19/01/2018, 11:20	Tallha Abdulrazaq: This is your defence?
19/01/2018, 11:20	M.N. Hassan: Court again
19/01/2018, 11:20	M.N. Hassan: Lol
19/01/2018, 11:20	Tallha Abdulrazaq: Let's see if it stands up in court
19/01/2018, 11:20	Tallha Abdulrazaq: You just defamed me in front of almost one hundred people
19/01/2018, 11:20	M.N. Hassan: You like to lose in court
19/01/2018, 11:20	Tallha Abdulrazaq: You're that confident that you can prove that I'm a terrorist in court?
19/01/2018, 11:20	M.N. Hassan: No I didn't
19/01/2018, 11:20	Tallha Abdulrazaq: This is a malicious falsehood
19/01/2018, 11:20	Tallha Abdulrazaq: Defamation
19/01/2018, 11:20	Tallha Abdulrazaq: Libel, to be precise
19/01/2018, 11:21	Tallha Abdulrazaq: I will see you in the High Court
19/01/2018, 11:21	M.N. Hassan: Said negotiate or mediate with such behaviour
19/01/2018, 11:21	Tallha Abdulrazaq: No, you specifically called me a terrorist
19/01/2018, 11:21	M.N. Hassan: No I didn't
19/01/2018, 11:21	Tallha Abdulrazaq:
19/01/2018, 11:21	M.N. Hassan: That's my clarification
19/01/2018, 11:21	Tallha Abdulrazaq: There's the evidence
19/01/2018, 11:21	Tallha Abdulrazaq: Doesn't work that way. Ask your daddy's lawyers
19/01/2018, 11:22	Tallha Abdulrazaq: Is your service address the same as your father's? Or the property in your name at Queens Crescent?
19/01/2018, 11:22	Tallha Abdulrazaq: Or shall I send it directly to your lawyers? If so, give me their address
19/01/2018, 11:23	Nasir Ahmed: Come on brothers... just stop. I would like to think we are ALL Muslim here and non are terrorist
19/01/2018, 11:23	M.N. Hassan: I have evidence too about u. But timing is important. If u want to take to court that's up to u im not bothered. Mostly I'm bothered that u spread lies and harassment of brothers in the community
19/01/2018, 11:24	M.N. Hassan: If ur Muslim Brotherhood then you ned to admit or deny this
19/01/2018, 11:24	M.N. Hassan: Need
19/01/2018, 11:25	M.N. Hassan: Lol if you think it's enough and you have money to take defamation to high court with such a flimsy comment on whatsapp then go ahead you serial court case loser
19/01/2018, 11:26	M.N. Hassan: Send it to ur 5 fans on Twitter
19/01/2018, 11:27	Tallha Abdulrazaq: Send me your service address
19/01/2018, 11:27	Tallha Abdulrazaq: Now you can see the truth
19/01/2018, 11:27	Tallha Abdulrazaq: Life isn't about money. Don't rely on your father and uncle's wealth, and be man enough to admit you just defamed me
19/01/2018, 11:27	M.N. Hassan: I'll meet u instead
19/01/2018, 11:28	Tallha Abdulrazaq: No
19/01/2018, 11:28	Tallha Abdulrazaq: Let's see how you stand up in court
19/01/2018, 11:28	M.N. Hassan: Don't be scared you're not the victim here
19/01/2018, 11:28	Tallha Abdulrazaq: You just called me a terrorist. You'll answer for that
19/01/2018, 11:29	M.N. Hassan: You're the one attacking then playing victim. I wonder who else does that
19/01/2018, 11:29	Tallha Abdulrazaq: I'll post it to your address on Companies House
19/01/2018, 11:29	Tallha Abdulrazaq: See you in the High Court
19/01/2018, 11:29	M.N. Hassan: You terrorised many brothers in the community. Truth will be out soon
19/01/2018, 11:29	Tallha Abdulrazaq: Everyone here is a witness to what you just said
19/01/2018, 11:30	Tallha Abdulrazaq: Yes, lay it down before a judge
19/01/2018, 11:30	Tallha Abdulrazaq: See you soon
19/01/2018, 11:31	M.N. Hassan: I didn't say it. I wrote it and open to interpretation. But as usual you'll misinterpret
19/01/2018, 11:31	M.N. Hassan: And distract from the real issue that you took Muslim to court!!!!
19/01/2018, 11:31	M.N. Hassan: Muslims
19/01/2018, 11:32	M.N. Hassan: I'm not scared of your threats
19/01/2018, 11:32	M.N. Hassan: Macro Man
19/01/2018, 11:34	M.N. Hassan: So u are Muslim brotherhood?
19/01/2018, 11:41	Tallha Abdulrazaq: So what if I did? Don't be defamatory and you won't go to court. Is this why you always complained to me about "kafir courts"?
19/01/2018, 11:41	Tallha Abdulrazaq: See you in court, as I said
19/01/2018, 11:44	M.N. Hassan: I never said that. That's what you said. "Gonna take you all to the White man" u said. So u are Muslim brotherhood in which case I'll gladly say to your face what you are with video evidence for your court case against me lol. You're a joke
19/01/2018, 11:46	M.N. Hassan: I said non Muslim court btw but u like to misinterpret to fit your agenda
19/01/2018, 11:47	M.N. Hassan: Why aren't u answering my question of whether you're Muslim brotherhood? This is their war tactics you're playing