For A False News Article to be Libelous Online It Must Be Read By a Substantial Number of People – British High Court Judge

Philip M. Stone February 7, 2005

Internet analysis software tells online publishers how many visits or hits any story may have, and from what country the visitors came from. And a British High Court judge has ruled that technology sets online sites apart from newspapers when it comes to the law of libel
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Knowing how many people have read the offensive article, and whether they are living in the country where the lawsuit is filed, can have a direct determination on whether an article can be found libelous, Lord Phillips ruled.

A Saudi businessman had won a lower court libel action against Dow Jones, publisher of the Wall Street Journal Online, for publishing an article claiming the businessman had donated funds to Al Qaeda, which the businessman had denied. But on appeal Dow Jones told the court that only five people in the UK had actually read the story. Lord Phillips, in a significant procedural ruling, said that because so few people had read the article in the UK the libel suit was actually an abuse of the court process, and to prove his point he awarded legal costs to be paid by the businessman to Dow Jones of £100,000, and the case could be no further appealed.

Lord Phillips said only if a “substantial” number of people in the UK had read the story online could it be eligible to be found libelous. He did not define “substantial." If more people in another country read the article then the businessman should sue there. His ruling was in direct contrast to a 2002 Australian ruling that had awarded libel damages for an online article read by just nine people in that country.

Although the Saudi article was placed on online in the US, the Saudi businessman chose to sue in the UK and the judge wanted to know why. The Saudi’s lawyers admitted they thought it would have been more difficult for the suit to have gone forward in the US where the libel laws are more protective of the media, and, besides, the businessman was better known in the UK than the US. They had understood from Dow Jones marketing information that the service had between 5,000 – 6,000 subscribers in the UK.

But while Dow Jones could celebrate over that ruling, it lost another substantial appeal .for a similar article published in the Wall Street Journal Europe. In that story three years ago it had accused the brother of the Saudi businessman who lost the online appeal of having his bank accounts monitored at the request of US regulators who were afraid funds were being diverted to terrorist groups.

The newspaper never claimed that the story was true, but said it was protected from libel action because of new case law which said that if a newspaper printed a story that was not true, and even defamatory, it could still escape libel if the story was shown to be in the public interest and that the newspaper had demonstrated responsible journalism in publishing it. The media had hoped the Appeals Court would broaden that new case law, but instead got the opposite.

Dow Jones said it will now appeal to the House of Lords, the UKs highest appeal court, and also to the European Court of Justice claiming the ruling goes against freedom of expression under the European Convention on Human Rights.

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WSJE Wins Landmark Libel Case In The UK - October 12, 2006

UK libel law has always been considered far harsher on the media than the libel law prevailing in the US so perhaps it is poetic justice that it has taken an American-owned newspaper to get the law liberalized via a landmark ruling in Britain’s highest court, The House of Lords.

The Wall Street Journal Europe, (WSJE) owned by Dow Jones, has been fighting four years for the principal that a public interest defense is valid for important stories, and the defense can only be ruled non applicable if editors act irresponsibly.

A High Court, and then a three-judge Court of Appeals had previously ruled against the WSJE and let stand a £40, 000 libel judgment for a story written in 2002 that named a Saudi businessman as one whose bank accounts were being monitored by Saudi officials at the request of US officials. The newspaper said it did not print the name to accuse the Saudi of wrong-doing, but to give a concrete example of how the Saudis were cooperating with American authorities.

The original trial judge ruled publication of the story was not in the public interest because it actually breached an agreement between the US and Saudi Arabia that the monitoring should be kept secret. Under long-standing English law such a defamation could only be defended if there was shown to be an urgent moral duty to publish it. The Court of Appeals agreed.

The Law Lords were unanimous, 5-0, in saying not so. They said the media is not bound by any government secrecy. The newspaper was entitled to publish its story, even if it was defamatory to individuals, as part of its duty of neutral news reporting or if, after investigation, the information gathered was believed to have substance and to raise matters of public interest. Newspapers are entitled to report important defamations against individuals as long as they “made a real contribution to the public interest element in the article.”

And the Law Lords went after their fellow judges, too, telling them it was not their job to second-guess decisions made in a busy newsroom. The lower court judges said the Saudi’s name should not have been used. The Law Lords specifically said including names was an important part of the story; indeed inclusion of names was necessary.

Lord Hoffman did not mince words in explaining how public interest reporting should be judged from now on. “The question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information. If the reporter and editor do behave fairly and responsibly, and the information if of public importance, the fact that it contains relevant but defamatory allegations against prominent people will not permit them to recover libel damages.”

Another Law Lord, Baroness Hale, summed up, “We need more such serious journalism in this country, and our defamation law should encourage rather than discourage it.”