Jameel v Wall Street Journal Europe sprl [2007] 1 AC 359

Key Point

  • Companies can sue for defamation without having to prove any special damage in the form of financial loss

Facts

  • The defendant, Wall Street Journal Europe, published an article covering how certain Saudi Arabian Banks were monitoring bank accounts which were suspected of funding terrorist organisations at the request of the United States Government
  • Jameel’s company was on the list for monitoring and sued for libel
  • Prior to s.4 of the Defamation Act 2013, which provides a defence of qualified privilege (i.e., protecting those who make statements which they have a legal, moral or social responsibility to do and the recipient has an interest in receiving it), the courts applied the 10 factors in the Reynolds defence to determine if a journalist took part in responsible journalism. The Reynolds defence was abolished by s.4(6) of the Defamation Act 2013. Here, the Reynolds defence of qualified privilege failed at the lower courts
  • The defendant was granted the permission to appeal to the House of Lords on two grounds:
    • whether the article fell within the scope of ‘responsible journalism’ under the Reynolds defence; and
    • whether a company that conducts no business in England and Wales be entitled to recover general damages for libel without pleading and proving that the publication complained of made it suffer special damage
  • (This case note only addresses the second ground of appeal)

Held (House of Lords)

  • Appeal allowed; the defendant was not liable for defamation
  • On the first ground: the Reynolds defence applied
  • On the second ground: A company can sue for libel without proving special damage

Lord Bingham

  • “The tort of libel has long been recognised as actionable per se. Thus where a personal plaintiff proves publication of a false statement damaging to his reputation without lawful justification, he need not plead or prove special damage in order to succeed. Proof of injury to his reputation is enough”: [12]
  • “I conclude that under the current law of England and Wales a trading company with a trading reputation in this country may recover general damages without pleading or proving special damage if the publication complained of has a tendency to damage it in the way of its business”
  • Countering an argument based on Article 10 of the ECHR (freedom of expression), the right to freely publish is not unqualified and it was held in Morris v United Kingdom (2005) 41 EHRR 403 that the state enjoys a margin of appreciation and the current rule was a matter for the judgment of the national authorities: [18]-[20]
  • Finally, “the weight placed by the newspaper on the chilling effect of the existing rule is my opinion exaggerated”: [21]

Lord Hope

  • Although a company “has no feelings which are capable of being injured”, “trade is its business, and it is injury to its reputation in that regard to its trade that is of the essence” and injury to business may not be limited to loss with the character of special damage: [95]
  • Similarly, bodies such as charities and trade unions need only prove that they have “a reputation that has a tendency to be damaged”: [96]
  • A change in the law is neither necessary nor desirable; it is not necessary as the law is compatible with article 10 of the ECHR as held in Steel and Morris v United Kingdom (2005) 41 EHRR 403
  • A change in the law is not desirable as:
    • “the law of libel is one and the same to all plaintiffs … [i]t would not be satisfactory to single out trading companies for special treatment”, particularly from other bodies such as trade unions or charities: [100], [101]
    • The difficulty of proving special damage will impede the function of libel to enable the “claimant to challenge the truth, and limit the damage, of allegations which risk harming its reputation”: [102]
    • Companies will have to wait till damage had actually been done to their business which was capable of being proved before it could sue to protect their reputation, this would leave companies “without a means of averting the damage that might result from the libel”: [102]

Lord Scott

  • Agrees with majority that the libel requirements are the same for companies as they are for people: [122]
  • “Proof of actual damage caused by the publication of defamatory material would, in most cases, need to await the next month’s financial figures, but the figures would likely be inconclusive. Causation problems would usually be insuperable.”: [121]
  • “It might be quite difficult to defame a holding company. But a holding company’s reputation might be indistinguishable from that of the corporate group to which it belonged.”: [125]

Lord Hoffmann (Dissenting)

  • Companies should be made to prove special damage: “In the case of an individual, his reputation is a part of his personality, the ‘immortal part’ of himself and it is right that he should be entitled to receive compensation for a slur upon it without proof of financial loss. But a commercial company has no soul and its reputation is no more than a commercial asset, something attached to its trading name which brings in customers. I see no reason why the rule which requires proof of damage to commercial assets in other torts, such as malicious falsehood, should not also apply to defamation”: [91]

Baroness Hale (Dissenting)

  • A corporation should on be allowed to sue for defamation for words “which can be shown to be likely to cause it financial loss”, as suggested by the Faulks Committee on Defamation – such a requirement would “achieve a proper balance between the right of a company to protect its reputation and the right of the press and public to be critical of it”: [157], [158]
  • She noted that in Derbyshire County Council v Times Newspaper Ltd [1993] AC 534, it was held that government authorities could not sue in defamation on the grounds of democratic accountability: [156]
  • “These days, the dividing line between governmental and non-governmental organisations is increasingly difficult to draw. The power wielded by the major multi-national corporations is enormous and growing. The freedom to criticise them may be at least as important in a democratic society as the freedom to criticise the government.”: [158]