The High Court did not suggest that the remarks were not
defamatory; it just said that there is no presumption that
"substantial publication" of an item has taken place within the
court's jurisdiction. "Substantial" in this context means
sufficient readers to justify a judgment.
Ethiopian-born businessman Mohammed Hussein Al Amoudi, who
normally lives in Saudi Arabia but spends around two-and-a-half
months a year in England, sued Swiss resident Jean Charles Brisard
and his Swiss company, JCB Consulting International SARL.
Brisard claims to be a world expert on terrorist financing. In
two reports on JCB's site he made references to Al Amoudi. These
suggested that Al Amoudi may be "a knowing participant in the
economic, financial and/or terrorist networks of the terrorist
Osama Bin Laden". Al Amoudi sued for defamation.
Although the offending documents were removed in Spring 2004, Al
Amoudi told the High Court that the offending words had been
published on JCB's site "to a substantial but unquantifiable number
of readers in this jurisdiction". The court's deliberations were
over Al Amoudi's demand for summary judgment – i.e. he was hoping
to win his case without the need for a trial.
Brisard and his company based their defence on an argument that
either the reports had not been downloaded within the jurisdiction
of the court, or that if they had been downloaded, it was only by
Al Amoudi's legal team, friends and business associates – and
therefore, they claimed, "reliance upon such publications amounts
to an abuse of process".
If any publication were proved, continued the defendants, it
would result in "no more than nominal damages" – so the cost of
pursuing the action would be "wholly disproportionate to the
outcome". English courts will consider the number of readers of a
libellous statement in gauging the level of damages to award.
Traffic figures showed, according to the judgment, that "the
number of hits on the website from the United Kingdom has been few"
– although some of the logs were missing. The monthly stats showed
"a large number of hits" where the country was unknown or
unrecorded; but Mr Justice Gray said the question of whether some
of these came from England remains open. (There are no figures in
the judgment and no analysis of the distinctions between hits, page
impressions and unique visitors.)
The traffic was important for another reason. An internet libel
case last year – coincidentally involving allegations about another
businessman's links with Bin Laden – established that a claim based
on nominal readership could be struck out as an abuse of the
court's process.
Al Amoudi argued in the present case that "it should be assumed,
unless and until the contrary is proved, that material available on
the Internet will have been read by a substantial number of readers
in the jurisdiction."
Not so, said the defence team. Publication over the internet
takes place if and only if the material is accessed and downloaded
by a third party within the jurisdiction. Sure, a jury at trial may
draw an inference to this effect, it acknowledged; but at this
interim stage, Al Amoudi does not and cannot assert that a jury
would be perverse not to do so.
Mr Justice Gray concluded that the claimant must prove that the
material was accessed and downloaded. He also made reference to
last year's case – Yousef Jameel's action against Dow Jones, in
which only five people in England had been shown to have clicked a
link to an allegedly defamatory item, including Mr Jameel's
solicitor and two of his business associates. Since the damage to
Mr Jameel's reputation was minimal, in the Court of Appeal's view,
only "very modest damages" would have been available after what
would have been a lengthy and expensive trial. So the case was
thrown out.
Mr Justice Gray suggested that the Court of Appeal in Jameel's
case would not have supported a presumption of publication. He
continued: "I am unable to accept that under English law a claimant
in a libel action on an Internet publication is entitled to rely on
a presumption of law that there has been substantial
publication."
Accordingly, the application for summary judgment was refused on
12th May. Last Tuesday, the High Court was told that the parties
had agreed settlement terms.
A statement was read in court for Mr Alamoudi, saying he is
"implacably opposed to terrorism in all its forms."
"He has never had any connection whatsoever with Osama bin
Laden, Al Qaeda or any other terrorist organisation or group," it
continued.
Mr Brisard confirmed that information that led him to make the
allegations "turned out to be false," and admitted wrongly accusing
Mr Al Amoudi of having terrorist connections. He and his company
said they "deeply regret" the embarrassment caused and offered
their "sincere apologies".
"The parties have come to terms, which remain confidential, as
to damages payable to Mr Al Amoudi and the costs of these
proceedings," read the statement.
Les Christy, a barrister and senior associate with Pinsent
Masons, the law firm behind OUT-LAW.COM, described the case as "a
helpful illustration of the principle" in the Jameel case last
year. "If the potential damages which might be recovered are
negligible – because there has been no real harm to the claimant's
reputation in this jurisdiction – and out of proportion to the
potential expense of the proceedings and vindication that the
claimant might expect to obtain at trial, then the court may
dismiss those proceedings at as an abuse of process," he said.
"This principle dovetails with the overriding objective of our
Civil Procedure rules which require Courts to deal with claims in a
manner which is proportionate to the amount of money involved."
