Thursday Law Report: Presumption of damage not incompatible with human rights

10 February 2005 Jameel v Dow Jones & Co Inc ([2005] EWCA Civ 75) Court of Appeal, Civil Division (Lord Phillips of Worth Matravers, Master of the Rolls, Lord Justice Sedley and Lord Justice Jonathan Parker) 3 February 2005

THE PRESUMPTION of damage that formed part of the English law of libel was not incompatible with article 10 of the European Convention on Human Rights.

An appeal by the defendant against a ruling striking out a plea in its defence to a libel action which attacked the presumption of damage was dismissed by the Court of Appeal, but its appeal against the refusal of its application for summary judgment was allowed.

The claimant was the brother of the claimant in Jameel v Wall Street Journal Europe sprl (Law Report, 9 February 2005). The defendant published the Wall Street Journal and the Wall Street Journal On-line. The claimant commenced libel proceedings against the defendant, complaining of an article posted on the internet servers of the Wall Street Journal On-line in New Jersey, which implied that he had been, or was suspected of being, involved in funding al-Qa'ida.

A box of text published as part of the article had a hyperlink which would enable readers of the article to find a so-called list of donors. The claimant claimed that the words accessible via the hyperlink, in their context, were defamatory of him.

In the course of the proceedings the judge ruled, inter alia, that a plea in the defence which attacked the presumption of damage on the ground that it was incompatible with article 10 of the European Convention on Human Rights should be struck out; and the defendant's application for summary judgment on the grounds, inter alia, that the action was an abuse of process, because only five subscribers within the jurisdiction were known to have followed the hyperlink and thereby accessed the list of donors, was refused. The defendant appealed.

James Price QC and Justin Rushbrooke (Carter-Ruck) for the claimant; Gavin Millar QC and Anthony Hudson (Finers Stephens Innocent) for the defendant.

Lord Phillips of Worth Matravers, handing down the judgment of the court, said that the presumption of damage that formed part of the English law of libel was not incompatible with article 10.

English defamation law had been well served by a principle under which liability turned on the objective question whether the publication was one which tended to injure the claimant's reputation. It would not be right to abandon that principle in the absence of a convincing case that it was in conflict with article 10.

However, if the claimant succeeded in his action and was awarded a small amount of damages, it could perhaps be said that he would have achieved vindication for the damage done to his reputation in England, but both the damage and the vindication would be minimal. The cost of the exercise would have been out of all proportion to what had been achieved.

If the court were considering an application to set aside permission to serve the proceedings out of the jurisdiction, it would allow that application on the basis that the five publications that had taken place in the jurisdiction did not, individually or collectively, amount to a real and substantial tort.

Jurisdiction was no longer in issue, but, for precisely the same reason, it would not be right to permit the action to proceed. It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little was now seen to be at stake.

The claimant's action would, therefore, be dismissed as an abuse of process.