Al-Fagih v HH Saudi Research & Marketing

This was an appeal by the defendant newspaper from the finding of Smith J at the trial on liability that the publication of an article containing material which was admitted to be defamatory of the Claimant was not protected by qualified privilege under Reynolds. The Claimant was a prominent member of a Saudi Arabian dissident political organisation based in the UK. The words complained of comprised an allegation made by one of the Claimant’s political opponents (“M”) to the effect that the Claimant had spread malicious rumours about M and had said that M’s mother procured women for M in his home. The Defendant pleaded qualified privilege, arguing before the Judge in favour of a privilege that was a variant on Reynolds. The Judge ruled that, in failing to verify the truth of M’s allegations, D had departed from the standards of responsible journalism and had impliedly represented that the allegations were true. It followed that a defence of qualified privilege failed.

Whether the Judge was correct to rule that the words were not covered by qualified privilege.

(Mantell LJ dissenting) the publication had occurred in the course of what was undoubtedly a political dispute between the Claimant and M which was being conducted in the public arena. In those circumstances it was in the public interest for the Defendant’s readership to know exactly what type of allegations were being made from time to time by one side of the dispute against the other. Provided that the Defendant did not, as it had not here, in any way suggested that it was adopting M’s allegations as true, the defence of qualified privilege ought to be available to it, notwithstanding the absence of verification.
(per Mantell LJ) the Judge had correctly applied the law and had reached a conclusion which was properly available to her on the evidence. There was no basis to interfere.

See the discussion in Gatley on Libel and Slander (10th ed) at 14.90 and in Gray J’s judgment in English v Hastie where Gray J distinguished Al-Faghi on the basis that what was being reported was a continued campaign of charge and counter-charge. There was no general privilege for neutral reporting, particularly since so to hold would cut across the intention shown by Parliament in Sch 1 to the Defamation Act 1996 defining categories of information that were protected if the subject of fair and accurate reports.