Jameel and others (Respondents) v. Wall Street Journal Europe Sprl (Appellants)
50. In answering the question of public interest, I do not think it helpful to apply the classic test for the existence of a privileged occasion and ask whether there was a duty to communicate the information and an interest in receiving it. The Reynolds defence was developed from the traditional form of privilege by a generalisation that in matters of public interest, there can be said to be a professional duty on the part of journalists to impart the information and an interest in the public in receiving it. The House having made this generalisation, it should in my opinion be regarded as a proposition of law and not decided each time as a question of fact. If the publication is in the public interest, the duty and interest are taken to exist. The Reynolds defence is very different from the privilege discussed by the Court of Appeal in Blackshaw v Lord  QB 1, where it was contemplated that in exceptional circumstances there could be a privileged occasion in the classic sense, arising out of a duty to communicate information to the public generally and a corresponding interest in receiving it. The Court of Appeal there contemplated a traditional privilege, liable to be defeated only by proof of malice. But the Reynolds defence does not employ this two-stage process. It is not as narrow as traditional privilege nor is there a burden upon the claimant to show malice to defeat it. So far as Lord Cooke of Thorndon said in Reynolds (at p 224) and in McCartan Turkington Breen v Times Newspapers Ltd  2 AC 277, 301 that the principle in Reynolds was essentially the same, I respectfully think that he did not fully analyse the differences: see the comment in Loutchansky v Times Newspapers Ltd (Nos 2-5)  QB 783, 806.
(b) Inclusion of the defamatory statement
51. If the article as a whole concerned a matter of public interest, the next question is whether the inclusion of the defamatory statement was justifiable. The fact that the material was of public interest does not allow the newspaper to drag in damaging allegations which serve no public purpose. They must be part of the story. And the more serious the allegation, the more important it is that it should make a real contribution to the public interest element in the article. But whereas the question of whether the story as a whole was a matter of public interest must be decided by the judge without regard to what the editor's view may have been, the question of whether the defamatory statement should have been included is often a matter of how the story should have been presented. And on that question, allowance must be made for editorial judgment. If the article as a whole is in the public interest, opinions may reasonably differ over which details are needed to convey the general message. The fact that the judge, with the advantage of leisure and hindsight, might have made a different editorial decision should not destroy the defence. That would make the publication of articles which are, ex hypothesi, in the public interest, too risky and would discourage investigative reporting.
52. In the present case, the inclusion of the names of large and respectable Saudi businesses was an important part of the story. It showed that co-operation with the US Treasury's requests was not confined to a few companies on the fringe of Saudi society but extended to companies which were by any test within the heartland of the Saudi business world. To convey this message, inclusion of the names was necessary. Generalisations such as "prominent Saudi companies", which can mean anything or nothing, would not have served the same purpose.
(c) Responsible journalism
53. If the publication, including the defamatory statement, passes the public interest test, the inquiry then shifts to whether the steps taken to gather and publish the information were responsible and fair. As Lord Nicholls said in Bonnick v Morris  1 AC 300, 309:
54. Lord Nicholls was speaking in the context of a publication in a newspaper but the defence is of course available to anyone who publishes material of public interest in any medium. The question in each case is whether the defendant behaved fairly and responsibly in gathering and publishing the information. But I shall for convenience continue to describe this as "responsible journalism".
55. In this case, Eady J said that the concept of "responsible journalism" was too vague. It was, he said, "subjective". I am not certain what this means, except that it is obviously a term of disapproval. (In the jargon of the old Soviet Union, "objective" meant correct and in accordance with the Party line, while "subjective" meant deviationist and wrong.) But the standard of responsible journalism is as objective and no more vague than standards such as "reasonable care" which are regularly used in other branches of law. Greater certainty in its application is attained in two ways. First, as Lord Nicholls said, a body of illustrative case law builds up. Secondly, just as the standard of reasonable care in particular areas, such as driving a vehicle, is made more concrete by extra-statutory codes of behaviour like the Highway Code, so the standard of responsible journalism is made more specific by the Code of Practice which has been adopted by the newspapers and ratified by the Press Complaints Commission. This too, while not binding upon the courts, can provide valuable guidance.
56. In Reynolds, Lord Nicholls gave his well-known non-exhaustive list of ten matters which should in suitable cases be taken into account. They are not tests which the publication has to pass. In the hands of a judge hostile to the spirit of Reynolds, they can become ten hurdles at any of which the defence may fail. That is how Eady J treated them. The defence, he said, can be sustained only after "the closest and most rigorous scrutiny" by the application of what he called "Lord Nicholls' ten tests". But that, in my opinion, is not what Lord Nicholls meant. As he said in Bonnick (at p 309) the standard of conduct required of the newspaper must be applied in a practical and flexible manner. It must have regard to practical realities.
57. Instead, Eady J rigidly applied the old law. Building upon some obiter remarks of Lord Cooke of Thorndon in McCartan Turkington Breen v Times Newspapers Ltd  2 AC 277, 301 to which he referred seven times in the course of his judgment (the case was actually about statutory privilege), the judge insisted that Reynolds had changed nothing. It was not in his opinion sufficient that the article concerned a matter of public interest and was the product of responsible journalism. It was still necessary to show, in the words of Parke B in Toogood v Spyring (1834) 1 CM & R 181, 193, that the newspaper was under a social or moral duty to communicate to the public at large not merely the general message of the article (the Saudis were co-operating with the US Treasury) but the particular defamatory statement that accounts associated with the claimants were being monitored. A "useful cross-check", he suggested, was "whether the journalists concerned might be the subject of legitimate criticism if they withheld the ex hypothesi false allegations." In my opinion this approach, equating a responsible journalist reporting on matters of public interest with an employer who has a moral duty to include in his reference the fact that his former employee was regularly drunk on duty, is quite unrealistic. Its use by Eady J on two previous occasions had already been criticised by the Court of Appeal in Loutchansky v Times Newspapers Ltd (Nos 2-5)  QB 783, 811 at para 49. In my opinion it is unnecessary and positively misleading to go back to the old law on classic privilege. It is the principle stated in Reynolds and encapsulated by Lord Nicholls in Bonnick which should be applied. On this question I have had the advantage of reading in draft the opinion of my noble and learned friend Baroness Hale of Richmond and wholeheartedly concur in her remarks.
58. I therefore pass to the question of whether the newspaper satisfied the conditions of responsible journalism. This may be divided into three topics: the steps taken to verify the story, the opportunity given to the Jameel group to comment and the propriety of publication in the light of US diplomatic policy at the time.
Verification of the story
(a) In Saudi Arabia
59. Mr James Dorsey, the correspondent in Riyadh, said that his story was derived from 5 sources whom, in accordance with journalistic practice, he did not identify by name. The first was "a prominent Saudi businessman", referred to as A, whose information was second-hand, and the others were "a banker", "a US diplomat", "a US embassy official" and "a senior Saudi official", all of whom were in a position to know and were referred to as B to E respectively. In Reynolds, Lord Nicholls said (at p 205) that any disputes of primary fact about matters relevant to the defence should be left to the jury. The judge therefore asked the jury whether the defendant had proved, on a balance of probabilities, that Mr Dorsey had been informed by source A that the Abdul Latif Jameel group was on an unpublished list of names whose accounts were being monitored by SAMA at the request of the United States and whether this had been confirmed by sources B to E.
60. That was a perfectly proper question to leave to the jury, but what in my opinion vitiated the answers was the assumption which the judge instructed the jury to make in considering it. He said:
61. In other words, the jury were told that in deciding whether sources B to E had given the information, they were to assume that they would have known that it was false. In the circumstances, it is not surprising that they were unconvinced that sources B to E had confirmed the story. It is true that they accepted that source A had provided Mr Dorsey with his lead, but that may have been because source A did not have first-hand knowledge and could not therefore be treated as having known that the information was false.
62. Telling the jury to make that assumption was, as the Court of Appeal decided (at para 59), a misdirection. The fact that the defamatory statement is not established at the trial to have been true is not relevant to the Reynolds defence. It is a neutral circumstance. The elements of that defence are the public interest of the material and the conduct of the journalists at the time. In most cases the Reynolds defence will not get off the ground unless the journalist honestly and reasonably believed that the statement was true but there are cases ("reportage") in which the public interest lies simply in the fact that the statement was made, when it may be clear that the publisher does not subscribe to any belief in its truth. In either case, the defence is not affected by the newspaper's inability to prove the truth of the statement at the trial.
63. Although the Court of Appeal accepted that this was a misdirection, they refused leave to appeal on the point, partly because counsel for the newspaper had not raised the matter at the trial and partly because they thought it would have made no difference to the outcome. But they agreed (at para 72) that they should not rule out the Reynolds defence on the basis of the jury's answers to the questions about Mr Dorsey's sources and that "if this appeal is to be dismissed, it should be on the basis of the findings in favour of the Jameels in respect of the other issues before us." I agree and one can therefore leave the answers to the questions about sources B to E on one side.
(b) In Washington
64. In New York, the news editor Ms Blackshire had Mr Simpson in Washington check it with the US Treasury, which was alleged to have provided SAMA with the list of accounts including those of the companies named in the story. The Washington staff reporter Mr Simpson gave evidence that he had given his contact at the Treasury the names provided by Mr Dorsey and that the Treasury had confirmed to him that they were on the list.
65. This was evidence of such importance that I must explain at some length why it seems to have received such little attention both at the trial and in the Court of Appeal. For this purpose, it is necessary to quote a number of passages from the transcript of Mr Simpson's evidence. He was asked to check the story on the morning of 5 February and recorded the outcome of his first conversation with his Treasury contact in an e-mail at 10:13 am, Washington time:
66. In evidence, Mr Simpson added (Proceedings Day 8, p 1064):
67. Mr Simpson went on to say that he had known his source at the Treasury for some years and at this time was often speaking to her several times a day. Her information had been consistently reliable and she had access to the "senior intelligence official who is involved in developing lists of names which are of interest to the US government in financing terrorism." (See p 1070).
68. Critically for the purposes of this case, he said that he and his contact communicated with each other in a code ("ritual" was what he called it) which was well understood in dealings between journalists and government departments:
69. Later in the day, Mr Simpson's source came back to him with further news:
70. Mr Simpson immediately telephoned the news editor:
71. He went on to explain that although his source provided information off the record and on terms of confidentiality, that did not mean that she was acting without authority. That was how the Treasury chose to distribute certain information:
72. It was put to Mr Simpson in cross-examination that he had misunderstood what his Treasury source had said. It was not confirmation but simply a decision to make no comment - perhaps because the US government had agreed not to disclose the identities of the accounts which they had asked to be monitored. But Mr Simpson stood his ground:
73. Later, counsel for the claimants put the point again:
74. In the discussion about the questions to be left to the jury, Mr Robertson QC (for the defendants) suggested that they should be asked whether Mr Simpson's Treasury source had confirmed the story: see para 75 of the judgment of the Court of Appeal. Mr Price QC for the claimants objected on the ground that there was no issue of primary fact about what the Treasury source had said: "the issue was as to the implications to be drawn from this". As a result, the jury was not asked any question about Mr Simpson.
75. Eady J dealt with his evidence quite shortly (at para 15):
76. It is true that in cross-examination Mr Price suggested more than once that the words used by the Treasury contact could not have meant what Mr Simpson said that they were intended and understood to mean. But Mr Simpson was not shaken on this point. He insisted (at p 1099) that there was nothing ambiguous about the communication which he had received. No evidence was called to contradict his statement that there was a well recognized Washington code by which "we are not going to make a public comment" meant "we have checked your story and as far as we are concerned it is correct". Nor was it suggested that he was being dishonest in testifying to the existence of this code. All that was put to him was that this was not, in normal usage, what the words meant. That of course is true.
77. The Court of Appeal said that Eady J's concluding words indicated that he must have forgotten Mr Robertson's proposed question. But, they said (at para 77):
78. That is a misunderstanding of Mr Simpson's evidence. He said loud and clear that his Treasury source confirmed the story. But the source did so in words which, in normal usage, would not be regarded as words of confirmation. If there was the ritual or code to which Mr Simpson testified, it was nevertheless confirmation. The meaning of a communication depends not only upon the dictionary meaning of words but upon the common assumptions between the parties about what words will be used to mean. If it is clearly understood between two parties to a conversation that the word black will be used to mean white, then when one of them says black, he intends to use and knows that he will be understood to have used the word to mean white. There was therefore an issue of primary fact in relation to Mr Simpson's evidence, namely whether there was a convention among journalists and their Washington government sources by which "We are not going to make a public comment" would be intended and understood to mean "We confirm our understanding that your story is correct." If it was to be challenged, the claimants could have called evidence on the point and in any event the question should have been left to the jury. As it was, Mr Simpson's evidence of the convention stood unshaken and uncontradicted.
Opportunity to comment
79. One of the matters which Lord Nicholls in Reynolds said should be taken into account was the opportunity, if any, which the claimant had been given to comment on the allegations before they were published. Items on the list (at p 205) were:
80. But Lord Nicholls (at p 203) rejected the suggestion that failure to obtain and report a comment should always be fatal to the defence:
81. In this case, Mr Dorsey telephoned to ask for a comment at 5 pm (Saudi time) on 5 February, the day before publication. (He said in evidence that he had left a recorded message that morning, but the jury did not accept this.) He spoke to Mr Jameel's secretary, who referred the call to a Mr Munajjed in Jeddah, who described himself as Mr Jameel's adviser. Mr Munajjed called back four hours later. Mr Munajjed said that he did not think it possible that the group's accounts would be monitored. They were a big and respectable organisation. Mr Dorsey asked whether he could quote this and Mr Munajjed said no, the only person who could speak on the record for the group was Mr Jameel. He was asleep in Tokyo and Mr Munajjed was not inclined to wake him. He asked whether publication could be postponed for 24 hours. Mr Dorsey said no, the article would be published with a statement that the Jameel group was not available for comment.
82. The judge and the Court of Appeal regarded this refusal to delay publication as fatal to the defence. The judge in particular drew attention to the fact that Mr Jameel subsequently obtained a denial from SAMA that they were monitoring his account and, if he had been given 24 hours, would very likely have been able to produce the denial to the Wall Street Journal before publication. In that case, said Eady J
83. I am bound to say that I regard this as unrealistic. There was no way in which SAMA would admit to monitoring the accounts of well known Saudi businesses at the request of the US Treasury. A denial was exactly what one would expect. (Mr Dorsey had approached SAMA directly for a comment but was unable to obtain one.) But I do not imagine that SAMA's denial would have inhibited the Wall Street Journal from publishing a story which had been confirmed by the Treasury in Washington. While it is true - and Mr Dorsey admitted - that the story would have been no better or worse 24 hours later, this is only significant if the delay would have made a difference. In my opinion it would not.
84. Lord Nicholls said that the importance of approaching the claimant was that "he may have information others do not possess or have not disclosed". But that was not the case here. In the nature of things, Mr Jameel would have no knowledge of whether there was covert surveillance of his bank account. He could only say, as Mr Munajjed and the other named businesses approached by Mr Dorsey had said, that he knew of no reason why anyone should want to monitor his accounts. This Mr Dorsey would have reported if he had been allowed to do so.