ABDUL RAZZAK YAQOOB AND OTHERS v. ASIA TIMES ONLINE LTD AND ANOTHER

HCA 1142/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1142 OF 2006

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J U D G M E N T

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I.   INTRODUCTION

1.  The Defendants posted an Article on a news website on 19 April 2006.  The Article alleged that the Plaintiffs were involved in money laundering, terrorist financing and drug trafficking.  The Plaintiffs sued the Defendants in defamation complaining that the Plaintiffs’ reputation had been wrongfully tarnished.

2.  At the time of publication the Defendants were not in a position to verify the truth or falsehood of matters stated in the article.  But the Defendants say that it was in the public interest that the potential wrongdoing by the Plaintiffs be exposed.  The Defendants claim that they had a social and moral duty to reveal the information in the Article.  They contend that the Article attracts qualified privilege so that, whether the Article is right or wrong in whole or in part, the Defendants should not be held liable in defamation.

3.  How, in those circumstances, does the Court strike a balance between the individual’s right to have his good reputation protected and the public’s right to be told of serious potential wrongdoing?  That is the issue at the heart of these proceedings.

II.  BACKGROUND

A.  Fact

4.  Mr. Abdul Razzak Yaqoob (ARY) is a Pakistani national living in Dubai.  He runs a Dubai-based business (known as ARY Traders) in partnership with his brother Mr. Muhammad Iqbal. 

5.  ARY Traders is a Dubai-registered company with branches in London and elsewhere.  It has been engaged in gold and jewellery trading on an international scale since 1969.  Between June 2000 and August 2005 it was an associate member of the London Bullion Market Association (LBMA).

6.  As a result of his business through ARY Traders, ARY has become, to quote the Article, “one of the hitherto best-respected – and most well-connected – jewelers and gold dealers in the Persian Gulf region”. 

7.  ARY is also chairman of the World Memon Organisation (WMO), a charitable association for the benefit of Memon communities worldwide.

8.  ARY Digital UK Ltd (Digital UK) is a subsidiary of ARY Traders.  It provides Urdu-language television broadcasts in the UK on a subscription basis.  It is part of the ARY Digital network which broadcasts Pakistani TV programmes in Dubai, Pakistan and other parts of the world.  The principal company of that network is ARY Digital FZ LLC (Digital Dubai) based in Dubai.  Mr. Salman Iqbal, son of Mr. Mohammad Iqbal, is a director of Digital UK and the president and CEO of Digital Dubai.

9.  ARY Traders, Digital UK and Digital Dubai form part of the ARY Group of companies.

10.  Asia Times Online Ltd (ATOL) is a Hong Kong company.  It is the publisher of Asia Times Online (ATO), an internet-only news service reporting on matters of political and economic interest.  The ATO website can be accessed by anyone in the world without restriction through the internet.

11.  Mr. Bertil Lintner is a journalist living in Thailand.  He is the author of the Article entitled “Dubai: An underworld paved with gold” which appeared on ATO on 19 April 2006.  The Article is annexed to this Judgment.  For convenience of reference, I have numbered the Article’s paragraphs and divided the Article into 13 thematic sections.

12.  By these proceedings the Plaintiffs contend that the Article was defamatory.  They have sued ATOL for a permanent injunction to restrain future publication and for damages (including exemplary damages) in respect of loss caused to their business as a result of the Article’s publication.  They have also issued a writ against Mr. Lintner claiming similar relief.  But Mr. Lintner’s precise whereabouts in Thailand being unknown, they have not actually served the writ on him.

13.  ATOL denies liability for defamation and in any event disputes the Plaintiffs’ entitlement to damages.  ATOL’s principal defence is that, if defamatory, the Article was subject to qualified privilege.  More specifically, it is ATOL’s case that, applying the principles which the House of Lords expounded in Reynolds v. Times Newspaper [2001] 2 AC 127, ATOL was under a duty in the public interest to publish the facts and matters stated in the Article.

14.  At trial, I heard oral evidence from ARY and Mr. Salman Iqbal on behalf of the Plaintiffs.

15.  On behalf of ATOL, Mr. Allen Quicke (editor of the ATO’s English version), Mr. Shawn Crispin (Southeast Asia Editor of ATO’s English version) and Mr. Lintner had provided witness statements.  But, at the close of the Plaintiffs’ case, Mr. Leo Remedios (appearing for ATOL) said that ATOL would not be calling any witnesses.

16.  The Article having been removed from the ATO website on about 20 April 2006, there is no longer a practical need to consider the grant of a final injunction.

B.  Law

17.  In Reynolds the House of Lords addressed the competing demands of the community’s right to know about matters of public concern and the individual’s right not to be wrongfully maligned in his good reputation.  Reynolds provides guidance on how the Court strikes a balance between the 2 competing rights in the specific case of investigative journalism or reportage.

18.  An investigative journalist compiles an article about the wrongdoing of some person based on information obtained from a range of documentary and human sources, some reliable, others less so. 

19.  Sometimes in the article the journalist may not identify his sources precisely or at all.  This is because often the journalist will have promised to keep the identities of his informants secret.  This will normally be done to encourage voluntary disclosure of sensitive information and minimise the risk of reprisals against the journalist’s informants by alleged wrongdoers.

20.  Frequently, the journalist will not be able to establish the truth or falsehood of information which has received to a standard of proof which would be acceptable to a Court.  Thus, a person may be said by a source to have engaged in wrongdoing in circumstances where, although there may be some corroborative evidence, the journalist cannot establish the truth of his information beyond a reasonable doubt or even on the balance of probability.

21.  Nonetheless, because of the ostensible seriousness of the wrongdoing being alleged, the journalist and his editors may go ahead and publish the article.  Thereafter, if sued for defamation by the person alleged to have engaged in serious wrongdoing, the journalist and his editors will typically claim qualified privilege.

22.  Accordingly, striking a balance between community and individual rights in these circumstances can begin with the definition of qualified privilege. 

23.  In Adams v. Ward [1917] AC 309 (at 334), Lord Atkinson defined an occasion of qualified privilege as:-

“an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it.”

24.  The touchstone for determining whether there is qualified privilege is thus what the House of Lords in Reynolds termed “the duty-interest test, or the right to know test”.  In the case of investigative journalism, such test requires the Court to assess whether the journalist and his editors had a legal, social or moral duty to publish the relevant article and whether the public had an interest in knowing about the matters in the article.

25.  Note, that insofar as reportage is concerned Reynolds introduces a subtle but important adjustment to Lord Atkinson’s definition of qualified privilege. 

26.  Lord Atkinson spoke of an “occasion” of qualified privilege. But the Court of Appeal in Loutchansky v. Times Newspapers Ltd. (Nos.2-5) [2002] QB 783 (at §33) has observed that, whereas in the past one could talk of qualified privilege attaching to an “occasion,” where reportage is concerned “Reynolds privilege attaches, if at all, to the publication itself”.  This is because “it is impossible to conceive of circumstances in which the occasion of publication could be privileged but the article itself not so”.

27.  Another key consequence of Reynolds (as Loutchansky pointed out at §33) is that, in the special case of reportage, “little scope remains for any subsequent finding of malice”. 

28.  Previously, one could speak of a defence of qualified privilege being defeated by malice (that is, recklessness or indifference as to whether a published statement is true or false, or making a statement with the dominant motive of injuring a person).  But Reynolds held that, in assessing whether an article is covered by qualified privilege in the first place, the Court must objectively examine whether a journalist has acted responsibly in compiling the article and whether the proprietor or editor of a news service has acted responsibly in allowing the article to be published.

29.  In Reynolds Lord Nicholls identified 10 non-exhaustive factors which the Court might consider in evaluating whether a journalist or his editors have acted responsibly in the publication of an article.  Those 10 factors are as follows:-

(1) The seriousness of the allegations being made.

(2) The nature of the information and the extent to which the subject matter of a publication is a matter of public concern.

(3) The reliability and motivation of the sources of the information used in a publication.

(4) The steps taken to verify the information.

(5) The status of the information.

(6) The urgency of the matter.

(7) Whether comment was sought from the person who is the subject matter of the allegations being made.

(8) Whether the article contained the gist of that person’s side of the story.

(9) The tone of the article.

(10)   The circumstances of the publication (including its timing).

30.  Given the factors, the question of malice becomes essentially subsumed within the Court’s consideration of journalistic responsibility.  For example, if a journalist writes recklessly without concern for the truth of what he writes, his article would not measure up against the factors.  The author of such an article could hardly be said to have engaged in responsible journalism and that article would simply not attract qualified privilege. Similarly, an article would not be privileged where its publication was motivated solely by a desire to injure without any attention being paid to whether the matters stated are true.

31.  That being so, it becomes important to say something about the standard of journalistic responsibility which the law expects.

32.  The standard should not be too low as that would only encourage the proliferation of defamatory material which cannot be in the public goods.  In this connection the Court of Appeal remarked in Loutchansky (at §41):-

“Journalists should be rigorous, not lax, in their approach.  It is in the interests of the public as well as the defamed individual that, wherever possible, truths and not untruths should be told.  This in the interests of the media too: once untruths can be published with impunity, the public will cease to believe any communications, true or false.”

33.  On the other hand, the standard should not be too high as this would compromise the free flow of information and prevent matters of public interest from coming to light.  Again, in Loutchansky (at §41), the Court of Appeal observed:-

“When determining in respect of any given article whether or not it should attract qualified privilege, the court must bear in mind the likely impact of its ruling not only upon the case in hand but also upon the media’s practices generally....  The question to be posed is ... whether it was in the public interest to publish the article, true or false, rather than whether it was in the public interest to publish an untruth.  Even, moreover, when the untruth of the article is established (or when, as here, it is not formally disputed), it is important to remember that the defence of qualified privilege tolerates factual inaccuracy for two purposes: first so as not to deter the publication sued upon (which might have been true); and secondly so as not deter future publications of truthful information.”

34.  Beyond that, I am not sure that it is possible or advisable fully to articulate the requisite standard.  Much will depend on the context of a given situation.  In essence, the Court has to evaluate whether, at least in light of the 10 factors identified by Lord Nicholls, a hypothetical responsible journalist or editor might reasonably decide to publish an article. 

35.  The assessment of journalistic responsibility is conducted objectively.  Strictly, the journalist’s subjective belief that he was acting responsibly is not relevant to the exercise.  This was stressed in Loutchansky (at §40): “In the final analysis it must be the court, not the journalist, to decide whether he was acting responsibly”.

III. DISCUSSION

36.  The Writ never having been served on Mr. Lintner, the trial has focused on ATOL’s duties as editor and publisher of the Article.  In this section I will first discuss ATOL’s liability (if any) and then cover the quantum of damages (insofar as ATOL is found liable).

37.  On liability, I propose to consider the following questions and matters:-

(1) Is the Article defamatory?  The discussion here will look at the Article as a whole.  However, as part of such exercise, it will be necessary to consider the individual sections into which I have divided the Article.  In so doing, it will also be convenient for me to consider the extent to which (if at all) the Article accurately reflected documentary materials which were apparently available to ATOL at the time of publication.  As no oral evidence was adduced by ATOL, it is not possible to know precisely what information (if any) ATOL or Mr. Lintner relied upon when compiling, editing or publishing the Article.

(2) If defamatory, does the Article attract qualified privilege?  The discussion here will apply Lord Nicholls’ 10 factors.

38.  On quantum, the Plaintiffs seek general, special and exemplary damages.  I shall successively examine the Plaintiffs’ entitlement (if any) to each type of damage.

A.  Liability

A.1    Whether the Article defamatory

(a) General remarks

39.  The Plaintiffs complain in Statement of Claim (SOC) §8 that in their natural and ordinary meaning the words in the Article were understood to mean the following:-

“(a)   [ARY Traders’] membership of LBMA was revoked as a result of its involvement or suspected involvement in money laundering, drug trafficking and possible terrorism-financing.

(b) [ARY Traders’] bank accounts in Britain have been closed through action taken by the authorities who are investigating its finances.

(c) [ARY Traders] has misappropriated funds invested with it by Abdul Qadeer Khan [AQK] or denied access to such funds.

(d) [ARY Traders] has moved assets of the Taliban regime out of Afghanistan shortly before its fall in 2001.

(e) [ARY Traders] has assisted UK based Pakistani drug traffickers in laundering their money by the export to them of gold and was the subject of investigation by British police since October 2002.

(f)  In 2001 the bank accounts of [Digital UK] were the subject of 3 notices of suspected money laundering and police believed the company was operating an illegal financing operation.

(g) [ARY] owns and control the ARY group including [ARY Traders] and [Digital UK] so is responsible for their nefarious activities as stated in (a) to (f) above.

(h) [ARY] was personally engaged in managing the illegally obtained funds of [AQK].

(i)  In 2002 [ARY] settled a complaint of libel against the Washington Post in order to avoid the disclosure of unlawful aspects of his business which he wished to keep secret.

(j)  There are good grounds to suspect that [ARY] is and has been assisting the transfer of money for various terrorist and/or militant groups.

(k) [ARY] uses the [WMO] as a front for the financing of terrorism.

(l)  Further action would be taken against [ARY] in view of the above matters but for his wealth and influence in the UAE.”

40.  The thrust of the Article is to accuse the Plaintiffs of engaging or assisting in money laundering, terrorist financing and drug trafficking.  Those are serious allegations.  The accusations levied by the Article, if false, would obviously be highly detrimental to a person’s good reputation.

41.  Moving to the specific meanings pleaded by the Plaintiffs, I think that an ordinary reader would understand the text of various sections of the Article as bearing one or more of such meanings.  Again, each of the meanings pleaded would, if false, be highly destructive to a person’s reputation.

42.  At trial Mr. Remedios called no evidence to justify either the thrust of the Article or the meanings pleaded in the SOC.  Therefore, no evidence having been adduced to justify the truth of the general thrust or the specific meanings, I can presume the same to be untrue.

43.  It follows that, subject to any defence of qualified privilege, ATOL must be liable to the Plaintiffs in defamation.

44.  I now proceed to examine the Article in closer detail to amplify my conclusion.  The Article has 28 paragraphs which I have divided into 13 sections as follows:-

(1) Section I:   §1.

(2) Section II: §§2-3.

(3) Section III:     §§4-5.

(4) Section IV: §§6-8.

(5) Section V:  §§9-11.

(6) Section VI: §12-15.

(7) Section VII:   §16.

(8) Section VIII:  §17.

(9) Section IX: §§18-20.

(10)   Section X:  §§21-22.

(11)   Section XI: §23.

(12)   Section XII:   §§24-27.

(13)   Section XIII:  §28.

(b) Section I

45.  Section I summarises the thrust of the Article.  It does not mention ARY by name but refers to “a Dubai financier” in its 1st sentence.  Reading the Article in the context of the Article as a whole there can be no doubt that the “financier” referred to is ARY. 

46.  The 2nd sentence does not expressly say that ARY is engaged in money laundering, drug trafficking and financing terrorism.  But the juxtaposition of the 1st and 2nd sentences and the words “only scratches the surface” in relation to the action taken in London against ARY would convey to an ordinary reader that ARY was being accused of involvement in such activities.

47.  A responsible editor reading Section I would certainly wish to satisfy himself that there existed at the time of publication sufficiently reliable material supporting the grave charges signalled in Section I.

(c) Section II

48.  Section II begins the Article proper.

49.  Paragraph 2 refers to the revocation on 30 August 2005 of ARY Traders associate membership in LBMA.  The Article only refers to the membership of “ARY of Dubai” being revoked.  Paragraph 3 later apparently equates that reference with ARY personally.  But, in actual fact, ARY Traders was the entity whose LBMA membership was revoked.  Accordingly, in context, Section II must be taken to be referring to alleged implications of the revocation of ARY Traders’ membership.  I should add that, reading the Article as a whole, it seems to treats ARY Traders and ARY (and indeed all other companies in the ARY Group) as interchangeable and essentially the same entity.

50.  Section II suggests there is more to the “routine announcement” by LBMA than meets the eye.  Developing the general theme of Section I, Section II alleges that the revocation of membership was “the first overt outcome of a long investigation into money-laundering, drug-trafficking and possible terrorism-financing”.  Section II therefore implies that ARY Traders and ARY (as proprietor of ARY Traders’ business) are likely engaged in those illegal activities and the revocation of ARY Traders’ membership is the first visible fruit of alleged investigations into their wrongdoing.  

51.  Further, when referring to the closure of some of ARY’s British bank accounts by unidentified authorities, Section II implies that such closures are another tangible result of the alleged ongoing investigations into the illegal activities of ARY and ARY Traders.

52.  It therefore seems to me that the meanings pleaded in SOC §§8(a), (b) and (g) are made out.

53.  The press notice released by the LBMA on 30 August 2005 merely stated that the associate membership of “ARY of Dubai” was revoked because it “failed to provide ongoing sponsorship as required by the LBMA constitution”.  As far as I can see from the documents disclosed by ATOL, there is just no evidence that the revocation of LBMA associate membership was linked in some way to any sort of ongoing investigations.

54.  Mr. Remedios did not challenge ARY’s explanation for the revocation of LBMA associate membership in cross-examination. 

55.  ARY explained that in 2003 ARY Traders’ business in gold had declined due to the ARY Group diversifying into real estate. ARY was also ill at the time.  Meanwhile, one of the 3 banks which had originally sponsored ARY Traders’ membership in the LBMA had ceased to be an LBMA member, while another had joined with a competitor and so was not willing to renew its sponsorship.  As a result, it was not possible within the time required to secure the 3 sponsors which (under a 2003 change to LBMA’s constitution) were necessary if ARY Traders was to continue as an LBMA associate.

56.  Further, as far as I can see from the material before me, at the time when the Article was published, there was no evidence of any British bank accounts of the ARY or the ARY Group being closed by any authorities as a result of investigations.

57.  I therefore can see no evidentiary foundation for the meanings pleaded in SOC §8(a), (b) and (g).  It follows that Section II is defamatory.

(d) Section III

58.  Section III purports to link ARY (and the ARY Group) with Mr. Abdul Qadeer Khan (AQK) who it is said made “millions of dollars ... from selling nuclear-bomb designs to countries such as North Korea and Libya”. The latter 2 countries are typically associated in the mind of the general public with the state-financing of terrorism.  The millions mentioned are expressly described as “ill-gotten” and said to be under ARY’s sole control through secret bank accounts. Thus, Section III picks up on the allegations of terrorist-financing and money-laundering made in Section I and II.

59.  In actuality, ARY denies (and there is simply no evidence showing) that ARY (or any company within the ARY Group) managed AQK’s finances.  ARY admits to having met AQK at a few public functions in Dubai.  But ARY is adamant that he never had any relationship with AQK.  None of this was challenged by Mr. Remedios in cross-examination.

60.  The only material available to ATOL supporting the allegation in the Article appears to have been an internet article dated February 2004 from a site called “Newsline” (www.newsline.com.pk).  That is a record compiled by Newsline’s Political Correspondent (Mr. Zahid Hussain) of an interview with General Aslam Beg of Pakistan. 

61.  The General is reported as having said the following:-

“[AQK] came here [Pakistan] with his knowledge and gave us nuclear capability.  We all protected him, right from Mr. Bhutto [Ms. Bhutto’s father] to General Pervez Musharraf.  We protected him (shielded) him in his efforts to acquire instruments and materials to enrich uranium, which is the first phase in the development of a nuclear programme.  He was given a fund, which was not (subject to auditing).  Naturally, he started working with friends.  He contacted some multinationals like ARY Gold, because they have a vast network.  That is how they developed contracts with people and agencies all over the world, picking up things from various places and making payments. Had [AQK] not been given a free hand, he could not have achieved his objective.  Those people engaged by him were all scientists.  Naturally, they came in contact with the outside world.  You can call them by any word – Pervez Musharraf calls them ‘the underworld’.  However, it was all authorised and approved by the legal government of Pakistan.  Some of our people were caught in Germany and elsewhere.  They were tried, and some of them even punished.  I remember Mr. Inamul Haq and Mr. Pervaiz.”

62.  Later the General is quoted as follows:-

“[AQK] and his scientists have given this country a credible deterrent for a paltry sum of money.  What they have in their account is what I call gold dust – they have not taken the government’s money.  If a scientist is given 10 million dollars to get the equipment, how would he do it?  He will not carry the money in his bag.  He will put the money in a foreign bank account in somebody’s name.  The money lies in the account for some time, and the mark-up that it fetches may probably have gone into his account.  It is a fringe benefit.

It is very logical that somebody contacts a scientist telling him that ARY Gold determines gold (prices) in the region, so why not invest a million dollars or have it invested on his behalf?  This may have happened.  Is it a crime? No.  The government is handling the issue in a very clumsy manner.  It has become party to what is a departmental conflict.  It believes that the scientists have sold nuclear technology.”

63.  The General does not actually say that AQK invested anything with ARY or his Group.  The General could simply have mentioned ARY Gold as an example of a multinational which AQK might have approached.  Nor does the General state that, if AQK handed any monies over to the ARY Group for investment, ARY or the ARY Group knew about any illegal provenance and purpose of such funds.

64.  There is in fact no entity in the ARY Group known as ARY Gold.  In all likelihood, the General was referring instead either to ARY Traders, which conducts gold trades within the ARY Group.  Alternatively, the ARY Group being prominent in the region for its gold trading, the General may have simply combined the “ARY” initials with the word “Gold” to mean the ARY Group (or even any major gold trader) generically.

65.  It accordingly seems to me that the interview with the General could be no reliable basis on which to make the allegations in Section III.  A responsible editor would want to see some better quality supporting material.

66.  Section III concludes by suggesting that ARY or his Group have somehow obtained an illegal benefit out of AQK’s ill-gotten monies as a result of transfers to “secret bank accounts to which only ARY has access”.  The only support for this grave allegation is that such is what anonymous investigators assert.

67.  In my view then, the meanings pleaded in SOC §§8(c), (g) and (h) are made out.  But there being no evidence of the truth of such meanings, Section III must be taken as defamatory.

(e) Section IV

68.  Section IV switches tack by linking ARY to Mr. Asid Ali Zardari and his wife Ms. Benazir Bhutto (the former prime minister of Pakistan).  The Article states that Ms. Bhutto was convicted of corruption in Pakistan in July 2002.  It describes Ms. Bhutto as an “associate” of ARY.  The implication seems to be that ARY was in some way complicit in Ms. Bhutto’s alleged criminality.

69.  The Article then refers to 2 cheques of US$5 million being “paid by ARY Gold” in 1994 to Mr. Zardari to secure monopoly on gold imports into Pakistan.

70.  This accusation that an ARY company bribed Mr. Zardari to secure a gold import monopoly in Pakistan is not new.  Similar accusations have been levied against ARY in a variety of publications since 1994.

71.  For this reason, although denying the allegations of bribery, Mr. Paul Carolan (appearing for the Plaintiffs) in opening stated that no complaint was being made here of those parts of the Article concerning the Zardari corruption case in Pakistan.  There is consequently no purpose in my considering Section IV further.

(f)  Section V

72.  Section V suggests that ARY has links with tribal leaders in Waziristan.  Although not expressly stated, the Article’s implication seems to be that, these tribal leaders being connected with the Taliban, it can be presumed that ARY also has links with the Taliban.  The suggestion is then made that, in the past, until the fall of the Taliban regime in 2001, ARY would transfer gold from Afghanistan to Dubai on behalf of the Taliban.

73.  ARY’s response at trial was robust.  He described the allegation of tribal connections as “utter nonsense”.  He stated (and this was not disputed in cross-examination) that he had “never met any tribal leaders” and had “never visited any tribal areas in my life”.

74.  The Article cites as a source of the link between the ARY and the Taliban a Washington Post article by Mr. Douglas Farah dated 17 February 2002.  The Article mentions that the Washington Post printed a letter from ARY responding to the Farah article. 

75.  Mr. Farah’s article entitled “Al Qaeda’s Road Paved with Gold” concerns how “the ruling Taliban and Osama Bin Laden’s al Qaeda network sent waves of couriers with bars of gold and bundles of dollars across the porous border into Pakistan”.

76.  That part of the Post article dealing with ARY runs as follows:-

“US investigators, led by the Customs Service, have began poring over transactions of some of Dubai’s largest and most prestigious gold brokerages for possible links to the movement of al-Qaeda or Taliban money, and have found unusual gold shipments into the United States after Sept. 11.

A Customs official said that as part of efforts to ‘investigate terrorist financing’ the agency was ‘scrutinizing movements of gold by several companies, including ARY Gold,’ one of Dubai’s largest and most prestigious gold bullion and jewelry dealers.

ARY’s cramped headquarters is located in the heart of Dubai’s gold market – an area several blocks square, filled with stores that sell little else.  [ARY], the Pakistani owner of ARY Gold, strongly denied knowingly doing business with the Taliban or al-Qaeda.

‘I am a God-fearing person, but all my life I have been afraid of religious people like the Taliban,’ said [ARY].  ‘I wouldn’t like to deal with Taliban people, and we don’t like Taliban people.’

‘If you say you want 100 kilos (220 pounds) of gold, I can give you that wherever you want in 12 hours.  What you do with it is your business,’ he said.

[ARY] who owns three of Dubai’s largest gold jewelry stores said he imports and exports gold legally.  Dubai has no restrictions on either activity, and [ARY] said competitors were spreading lies about his company out of jealousy.

During two interviews here, [ARY] displayed few hints that he was a powerful political and financial broker.  Wearing a simple white robe, he spoke in a small office separated by a glass partition from brokers monitoring a bank of computers.  On the wall were plaques commemorating his gifts to charitable causes.

In 1998, Pakistani investigators looking into government corruption found two checks, each for $5 million, allegedly aid by ARY Gold in 1994 to Asif Ali Zardari, the husband of the then-prime minister Benazir Bhutto, to secure a two-year monopoly on gold imports to Pakistam.  While acknowledging he held the monopoly and shipped $500 million in gold to Pakistan from 1994 to 1996, [ARY] said that he had paid no bribes and that ‘enemies’ had falsified the bank documents.

[ARY] was cleared of criminal charges in Dubai but still faces charges in Pakistan from that case, Pakistani authorities said.

‘Always if you are doing good business, people are jealous,’ [ARY] said.  ‘Everyone, all the leaders of Pakistan, come to me for advice.  We are well known and famous and people don’t like that.’”

77.  ARY’s letter in response (published on 7 March 2002) stated:-

“Through inaccuracy and inference, The Post’s Feb. 17 front-page story ‘Al Qaeda’s Road Paved with Gold’ surmised that my company, ARY Traders/ Jewellery, and I, personally, have been helping al Qaeda and the Taliban move assets out of Afghanistan.

This is untrue.  My business of gold trading relies on its reputation and on building close relationships with a number of global financial institutions, based on trust and confidence.  I would never place that reputation or those relationships in jeopardy for any reason.

The Post’s reporter quoted me as saying that I could deliver 100 kilos of gold anywhere in 12 hours.  That was an amalgamation of my responses to two separate questions – one concerning the days when the Dubai market was a free-for-all; the other about the time required to transport gold to India.  Far from being unrestricted, as the report claims, Dubai has a strong regulatory regime governing gold trading.  Sales of gold valued at 500,000 United Arab Emirates dirhams ($136,000) or more have to be recorded together with a copy of the buyer’s passport for scrutiny by Dubai’s central bank.  At ARY, however, we voluntarily tightened that limit to 200,000 dirhams ($54,000).

All our transactions are transparent.  We have fewer than 40 clients, and we know all of them very well.  Most of them are in Dubai and two are in India, where we work through the government’s State Trading Corporation of India. In addition, ARY Traders/Jewellery is audited by one of the Big Five international accountancy firms.  Independent audit is essential if we are to meet the regulatory requirements under which our suppliers, the international bullion houses, work.

What may appear to be minor inaccuracies in The Post’s report only strengthen the wrong inferences.  The plaques in my office refer to my sponsorship or participation in sporting and cultural events – not to any ‘gifts to charitable causes’.  The ‘brokers monitoring a bank of computers’ next to my office are accountants and office administrators working on PCs.  We are not brokers.  I do not have political power in Pakistan.

I would be happy to give our full cooperation to an official inquiry and would have no hesitation in opening up our finances and dealing records to its investigators.”

78.  A responsible editor comparing the Article with Mr. Farah’s account and ARY’s letter would be concerned that the Article was distorting what Mr. Farah had reported.  There would be concern that Section V did not give a fair account of ARY’s response.

79.  First, Mr. Farah’s article says nothing about ARY having connections with Waziri tribesmen.

80.  Second, although Mr. Farah’s article refers to scrutinising the movements of gold by ARY and his group, it is far from clear from the account that this means that the ARY Group is complicit in illegal activity.  As a major gold trader, it is possible that ARY Traders (say) may have innocently and in good faith moved large volumes of gold from one place to another on behalf of third parties without realising that such persons were engaged in wrongdoing.

81.  Third, the last sentence of Section V §12 sits oddly with the last sentence of ARY’s letter.  The willingness to cooperate with the authorities demonstrated by the latter contradicts the suggestion in the Article that ARY feared a court case bringing to light “more revealing details about his gold business that he would prefer to keep himself”.

82.  I think then that Section V gives rise to the meanings pleaded in SOC §§8(d), (g), (i) and (j).  I do not think that there is any reliable evidence supporting such meanings.  The meanings are thus defamatory.

(g) Section VI

83.  Section VI gives an account of the growth of the gold market in Dubai.

84.  The section concludes in §15 by implying that ARY Traders assisted Pakistani drug traffickers to launder money through the export of gold from Dubai to the UK.  I say “implying” because this is not expressly stated.  Instead, the suggestion is obliquely made through juxtaposing the 1st and 2nd sentences of §15 with the 3rd and 4th sentences of that paragraph. 

85.  Why (the reader asks himself) is there such a juxtaposition?  The answer must be because the author of the Article wishes to suggest some connection between the export by ARY Traders of Euros 6.4 million of gold bars between October 2002 and December 2003 with the purchase of exported gold by Pakistani drug traffickers masquerading as jewellers in the UK.

86.  I think that the meanings pleaded in SOC §§8(e) and (g) are thus made out.  There is no evidence whatsoever supporting the allegation of assisting drug traffickers.  Thus, the last sentence of Section VI must be defamatory.

(h) Section VII

87.  This section attempts to link ARY to Mr. Mohinder Singh Basra, who is said to be a major money launderer.  It is alleged that Mr. Basra was working in partnership with the ARY Group.  As such partner, the ARY Group is implied to be “still wanted for questioning”.  The source of this allegation is apparently the BBC.

88.  A responsible editor would have asked for sight of the BBC article linking Mr. Basra with the ARY Group.  Had it been provided with that article (entitled “Man laundered £25m of ‘dirty money’” and dated 8 October 2002), the editor would have noticed that there was nothing in the article identifying the Dubai-based partner wanted for questioning with the ARY Group. There is actually nothing before the Court which suggests that ARY or any company in the ARY Group was in partnership with Mr. Basra.

(i)  Section VIII

89.  This section accuses Digital UK of being the subject of 3 notices of suspected money-laundering.  It suggests that Digital UK may be operating an illegal banking service.  It purports to find evidence of this in “an unsupported increase in [Digital UK’s] turnover from 570,000 euros in 1999 to more than 4.7 million euros in 2001”.

90.  In fact there is no evidence or document supporting the allegations being made in Section VIII. 

91.  Take Digital UK’s turnover. 

92.  In 1999/2000 turnover was Euros 800,224. 

93.  The ARY Group bought the company in October 2000.  It converted Digital UK from a 12- to a 24-hour broadcasting service.  As a result of this and more investment, turnover increased to Euros 1.45 million in June 2001. Through the broadcasting of live cricket matches, turnover went up to Euros 4.487 million as of June 2002.

94.  Digital UK’s accounts being available on the website of Companies House, its audited turnover figures could have been verified for the purposes of the Article. Accordingly, it is unclear in what sense the jump in turnover alleged by the Article is “unexplained”.

95.  Mr. Remedios did not challenge any of the foregoing evidence from Mr. Salman Iqbal in cross-examination.

96.  I conclude from all this that the meanings pleaded in SOC §§8(f) and (g) are established.  I find them to be untrue.  Consequently, Section VIII is defamatory.

(j)  Section IX

97.  This describes the “hawala” system.  It suggests the widespread use of that system for transferring money in the Dubai gold trade.  It acknowledges that “hawala” may be used for both innocent as well as illegal purposes.

98.  But Section IX §19, through juxtaposition, implies that ARY or ARY Group companies serve criminal or terrorist clients.  The 3rd sentence states that criminals and terrorists are the “main patrons” of “hawala”.  Out of the blue, this is followed by a sentence to the effect that ARY is the biggest gold dealer in Dubai “with an estimated 45% share of the local gold wholesale business, which in 2003 was believed to be in the order of $5.87 billion”.  There would be little purpose in introducing such sentence unless the reader was meant to infer that ARY or ARY companies provided “hawala” services to criminals and terrorists.

99.  It is true that §19 does not expressly state that ARY or ARY companies wittingly (as opposed to unwittingly) assist illegal operations through “hawala”.  But it is difficult to resist the conclusion, reading the Article as a whole, that the reader is meant to draw the conclusion that ARY and the ARY companies are complicit in the purported criminal activities.

100.  I think that the meaning pleaded in SOC §8(j) are made out in §19.  In my view, the paragraph is defamatory.

101.  There is simply no evidence before the Court to support the allegations raised against ARY and the ARY Group in Section IX.  A responsible editor should have asked to see at least some material justifying the allegations.  In the absence of any such reliable material, I do not think that the editor could have allowed Section IX §19 to be published.

(k) Section X

102.  This repeats (in §23) the allegations concerning ARY’s links with the Taliban, Waziris in the Afghan-Pakistan border area, and AQK.  These matters have already been considered above.

(l)  Section XI

103.  This suggests that ARY was given an opportunity to (but did not) respond to the allegations being made against him in the Article.

104.  A fax was indeed sent addressed to ARY at the general fax number of ARY Traders.  It was received by a staff member who forwarded it to ARY’s office.  ARY was not in Dubai at the time and did not see the fax until his return after the Article had been posted on ATO’s website.  There was no other attempt to communicate with ARY.  In particular, Mr. Lintner made no attempt to communicate with ARY by telephone or to arrange an interview with him.

105.  The fax was as follows:-

“Bertil Lintner
GPO Box 79, Chiang Mai 50000, Thailand
Tel and fax +66 53 399 135,
Mobile +66 6 911 3348
E-mail lintner@loxinfo.co.th

Chiang Mai, April 11, 2006

To:-

Mr. Abdul Razzak Yacoub Ghandi

DUBAI, UEA

Dear Mr. Ghandi,

My name is Bertil Lintner and I am a journalist based in Thailand.  I am working on a story about the gold trade in Dubai and would appreciate it very much if you could help me by answering the following questions:

1)  On August 30 last year, the London Bullion Market Association announced that ARY (Dubai) has had its associate status revoked.  What was the reason for this revocation?

2)  On 10 July 2002 the BBC announced that Pakistani investigators had found two cheques, each for US$5 million, allegedly paid by ARY Gold in 1994 to Asid Ali Zardari to secure a two-year monopoly on gold imports to Pakistan.  Is this correct?

3)  According to an article in the Washington Post of February 18, 2002, US investigators were ‘scrutinising movements of gold by several companies, including ARY Gold’ in connection with the fall of the Taliban regime in Afghanistan.  Did any such movements involving ARY Gold ever take place?

I would be most grateful if you could help me clarify these points, and reply by either e-mail (lintner@loxinfo.co.th) or fax (+66 53 399 135).”

106.  The sending of the fax did not provide a fair opportunity to ARY to give his side of the allegations in the Article.

107.  First, the fax suggests that the Article will be about the gold trade in Dubai.  That may be literally true.  But the Article in fact targets ARY and makes serious allegations about him.  ARY’s alleged criminality is in reality the main theme of the Article.  It is misleading to say that the Article is merely to be about the Dubai gold trade.

108.  Second, the questions raised by the fax are problematic.

109.  Paragraph 1) of the fax asks about the LBMA membership revocation.  It would have been fairer to inform ARY that Mr. Lintner was intending to portray this as the result of investigations of relevant authorities into money laundering, terrorist-financing and drug trafficking by ARY and the ARY Group.

110.  Paragraph 2) on the face of it has little to do with the Dubai gold trade.  Mr. Lintner, it seems to me, should have indicated to ARY that he was intending to use the Zardari case as corroborative of ARY’s alleged involvement in money laundering, terrorist financing and drug trafficking.

111.  Paragraph 3) is impossible to answer.  I am not sure how ARY could know what movements of gold were being scrutinised by which US investigators.  What specific movements did Mr. Lintner have in mind?  These are not specified.  The question lacks particularity.  It is also unclear just what connection the question has with the Dubai gold trade.

112.  Third, there is nothing in the fax asking for comment on ARY’s alleged involvement with a number of other matters raised in the Article: AQK; local tribes in the Afghan-Pakistani border; the use of “hawala” for criminal purposes; Mr. Basra; money laundering through Digital UK; and Mr. Iqbal Mirchi.  No opportunity was given to ARY to comment on the grave allegations which the Article was going to raise on these topics.

113.  Fourth, the fax was casually written and faxed to ARY Traders’ number.  It could simply (and reasonably) have been ignored as a crank letter.  Far greater effort ought to have been made to bring to ARY’s attention to the fact that the Article was potentially harmful to his reputation and that of his Group.

114.  A responsible editor would not have accepted that the fax attempt to obtain ARY’s side of the story was sufficient.  Without satisfying itself that greater effort had been made, the editor ought not to have published the Article.

(m)    Section XII

115.  Section XII deals with ARY’s involvement in WMO.  It appears to suggest, through juxtaposition, that ARY’s involvement is a mere front for terrorist activity.  This is achieved by juxtaposing the account of ARY’s work in WMO with the mention (in §27) of a close connection with

“Iqbal Memon also known as Iqbal Mirchi, a wanted international drug trafficker and the right-hand man of Dawood Ibrahim, the leader of a notorious Mumbai-based criminal syndicate that was behind a string of bombings in that city in March 1993”

116.  Section XII then connects ARY’s work in WMO with terrorist financing through a quotation from an unidentified “Western intelligence official”.  The quotation does not explicitly state that ARY is involved in terrorist financing but it suggests that he is by observing that “ARY nevertheless has ideal conditions” for such financing.

117.  In my view, the meaning in SOC §8(k) is made out.  There is no evidence that WMO or ARY had any association with Mr. Mirchi or terrorist-financing whether through “hawala” or any other means.  Section XII is therefore defamatory. 

(n) Section XIII

118.  This concludes the Article.  The final sentence of the section picks up a theme that runs through the entire Article.  The theme is that, but for his wealth and influence (ARY’s “clout – and money – in the emirate and beyond”), ARY would long have been apprehended by the authorities.

119.  This is essentially the meaning pleaded in SOC §8(l).  It is made out.  It is defamatory.  It suggests ARY is bribing his way out of being convicted on allegations for which, as far as this Court is concerned, there is simply no evidence.

(o) Summary

120.  The Article is written in a tendentious, sensationalist style.  It attempts to condemn ARY and companies within his group through wild accusations and associations.  There is little (if any) reliable evidence backing its allegations.  Looked on as a whole, the Article is defamatory.

A.2    Whether qualified privilege

(a) General remarks

121.  In my view, the defence of qualified privilege is not available to ATOL.  It appears to me to have been grossly negligent in allowing the Article to appear on its website without demanding better quality evidence substantiating the allegations being levied against ARY and the ARY Group.  I also do not think that ARY was given a fair opportunity to respond to the Article before publication.

(b) Factor 1: The seriousness of the allegations being made

122.  Accusations of money laundering, terrorist financing and drug trafficking are indisputably serious.  Taken singularly or in combination accusations of such activities would seriously damage any person’s reputation.

(c) Factor 2: The nature of the information and the extent to which the subject matter of a publication is a matter of public concern.

123.  There is obviously a public interest in the public being informed of criminal activity.  But there is no public interest to be misinformed.  A publisher cannot claim a duty to tell the public about matters of which there is little or no reliable evidence. 

124.  As we have seen in Part III.A.1 of this Judgment, the Article makes grave allegations without any proper support.  When compared with its apparent documentary sources available at the time of its publication, the Article appears to be misleading or to give a distorted picture.

(d) Factor 3: The reliability and motivation of the sources of the information used in a publication.

125.  No oral evidence having been adduced by ATOL, I am unable to say precisely what sources were relied on for the Article.  The Article makes reference to investigators and their investigations but does not identify precisely who or what those are.  The documentary materials that appear (from the text of the Article) to have been used do not support the allegations made.

(e) Factor 4: The steps taken to verify the information.

126.  No oral evidence having been adduced, it is not possible to say what steps (if any) were taken.  Whatever those steps may have been, they do not appear to have been carried out in a responsible or professional manner. 

127.  In Part III.A.1 of this Judgment, I have suggested certain steps which a responsible editor should have taken. That the Article was published in the form that it was indicates that those steps were either not taken, or were carried out in an extremely careless manner by ATOL.  Further, given that ATOL called no witnesses on this important subject, I am entitled to presume against ATOL that it did not do a responsible job in vetting the Article and ensuring that it was suitable for publication.

(f)  Factor 5: The status of the information.

128.  The information is low grade.  The Article is short on particulars.  Instead, the text deals with matters in broadbrush, generalised terms.

(g) Factor 6: The urgency of the matter.

129.  There was no urgency.  The Article purports to have been occasioned by the LBMA announcement in August 2005.

(h) Factor 7: Whether comment was sought from the person who is the subject matter of the allegations being made.

130.  For the reasons I have already given, I do not believe that the fax attempt was adequate.

(i)  Factor 8: Whether the article contained the gist of that person’s side of the story.

131.  It did not.  Even the contents of ARY’s letter to the Washington Post were not properly presented.

(j)  Factor 9: The tone of the article.

132.  I have already dealt with this in Part III.A.1 of this Judgment.

(k) Factor 10: The circumstances of the publication (including its timing).

133.  I have no observations to make on this factor.

(l)  Summary

134.  An application of the factors all points one way.  I do not accept that ATOL met the required standard of journalistic responsibility.  It therefore had no duty to publish the Article in the public interest and cannot claim qualified privilege in relation to the Article.  ATOL is thus liable in defamation.

B.  Quantum

B.1    Whether general damages

135.  Mr. Carolan asks for damages of $1 million in relation to each of ARY and Digital UK and $300,000 in relation to ARY Traders.

136.  Mr. Remedios says that damages should be nominal.  Mr. Remedios argues that this should be the case for the following reasons:-

(1) There is no evidence that the libel was published (in the sense of being downloaded) in Hong Kong.

(2) There is no evidence that ARY had any reputation in Hong Kong.

137.  On his first objection, Mr. Remedios went so far as to suggest that the claim should be dismissed outright.

138.  Mr. Remedios relied on a number of cases suggesting that an article in the internet is published where it is accessed and downloaded.  If so, according to Mr. Remedios, there being no oral or documentary evidence from the Plaintiffs expressly stating that the Article was downloaded in Hong Kong, there can have been no publication in Hong Kong and the claim should be rejected.

139.  I am not persuaded by the argument.

140.  The majority of cases relied upon by Mr. Remedios concern the question whether a defamation took place in some home jurisdiction for the purpose of service abroad. 

141.  Thus, for example, in the Hong Kong situation, assume it is proposed to sue someone outside the jurisdiction for the tort of defamation.  In such case, it may be necessary in order to obtain leave for service of a writ outside Hong Kong for a plaintiff to show that the defamation took place here.  Otherwise, the Hong Kong Court may not be able to assume extra-territorial jurisdiction under Order 11.

142.  The situation in this case is different.  Here a party (the Plaintiffs) has sued a Hong Kong company (ATOL) as of right in Hong Kong.  There is no need to obtain leave for service outside of the jurisdiction and therefore no need to establish that the defamation took place here.

143.  On the other hand, in the case of Al Amoudi v. Brisard [2007] 1 WLR 113 (also relied upon by Mr. Remedios) the question was whether, in the absence of a positive defence, the claimant could strike out a bare denial by the defendant that there had been no substantial publication of certain offending words in England.  The claimant argued that there was a rebuttable presumption of law that an article on an internet website, being open to everyone in the world, had been published in England.  Gray J held that there was no such presumption, although publication in England could be inferred as a matter of fact from all the circumstances of a case.

144.  Al Amoudi is no authority for the proposition that, in the absence of proof of publication in Hong Kong, a party cannot sue in Hong Kong for the publication of a libel elsewhere.

145.  Here there can be little doubt that the Article was accessed by third parties outside Hong Kong. 

146.  Mr. Farah of the Washington Post, for instance, posted an online comment referring to the Article.  This suggests that he had at least accessed and most probably downloaded the same. 

147.  Further, among the documents in the bundle are e-mails dated 22 April 2006 from Mr. Benish Memon and Mr. François Thiellet respectively, alerting their friend Mr. Salman Iqbal to the spread of the Article by a Mr. Tariq Muhammad.  Mr. Muhammad (possibly a fictitious name) downloaded the Article and sent e-mails attaching the same to various persons with the TV broadcast industry.

148.  Nor must I be taken to accept Mr. Remedios’ contention that there has been no publication in Hong Kong. 

149.  There is, for example, a fax letter dated 4 May 2006 from Mr. Shezad Sheikh of A. J.’s International Ltd. of Hong Kong to the effect that, due to the Article, a Hong Kong dinner to introduce ARY to the business community in Hong Kong had to be cancelled. 

150.  Mr. Remedios rightly points out that the letter does not expressly state that the Article had been accessed or downloaded by Mr. Sheikh.  But the tenor of the letter indicates that the contents of the Article had been sighted or accessed, if not by Mr. Sheikh personally, then at least by the business persons whom he wished to invite.  I think that on the balance of probability I can draw such an inference.  I note that there is no suggestion that Mr. Sheikh’s letter is a concoction.

151.  In my judgment, I am able to award general damages in respect of the damage to the Plaintiffs’ reputation as a result of publication of the Article inside and outside Hong Kong.

152.  As for Mr. Remedios’ second objection, I am also not persuaded.

153.  On the basis of the fax from A. J. International already discussed, a fax letter dated 1 May 2006 from Mr. Muhammad Tayaib Qasmi (Chief Imam, Masjud & Madras, Hong Kong) to ARY and a fax letter dated 1 May 2006 from Mr. Zakaullah of Zaki International to ARY, there is evidence that ARY had some acquaintances or at least some social standing here in Hong Kong.

154.  Nor do I see why I should confine myself to ARY’s reputation in Hong Kong in evaluating damages.  Plainly, ARY has an established reputation elsewhere, especially in Dubai.  The Article itself alludes to ARY’s prestige and reputation (“best-respected – most well-connected – jewellers and gold dealers in the Persian Gulf region”) in Dubai and elsewhere.

155.  In any event, defamation is actionable per se.  At least where human beings are involved, general damages for defamation are typically awarded without proof of actual hurt.  In any part of the world, it would be a serious allegation to say of someone that he is not just a money-launderer, but also a financier of terrorist and drug-trafficking activities.  Such an allegation, if unfounded, is bound to do significant damage to any person’s standing.

156.  In all those circumstances, I think that Mr. Carolan’s suggestion of $1 million in general damages in respect of ARY is fully justified.

157.  In Jameel (Mohammed) v. Wall Street Journal Europe Sprl [2007] 1 AC 359 (HL), Mr. Jameel received an award of £30,000 in respect of a wrongful allegation of terrorist financing.  The award which I make here is greater because the allegations made against ARY do not stop at terrorist financing.  ARY also stands wrongfully accused in the Article of money laundering and drug trafficking.

158.  By contrast, I differ with Mr. Carolan in relation to $1 million in general damages for Digital UK.

159.  A corporation is different from a human being.  In Lord Hoffmann’s words (see Jameel at §91):-

“In the case of an individual, his reputation is a part of his personality, the ‘immortal part’ of himself and it is right that he should be entitled to vindicate his reputation and receive compensation for a slur upon it without proof of financial loss.  But a commercial company has no soul and its reputation is no more than a commercial asset, something attached to its trading name which brings in customers.  I see no reason why the rule which requires proof of damage to commercial assets in other torts, such as malicious falsehood, should not also apply to defamation.”

160.  Lord Hoffman’s was a dissenting judgment in Jameel.  Nonetheless, even according to the majority in the latter case, for reasons similar to those summarised by Lord Hoffmann, the principle is (see Jameel at §13 (Lord Bingham citing Kay LJ in South Hetton Coal Co. Ld. v. North-Eastern News Association Ltd. [1894] 1 QB 133 (at 148)):-

“[A] trading corporation may sue for a libel calculated to injure them in respect of their business, and may do so without any proof of damages general or special, although, where there is no such evidence, the damages given will probably be small”.

161.  Mr. Carolan accepted the correctness of the latter principle.

162.  Digital UK is accused in the Article of money laundering and running an illegal “hawala” service.  That is similar to the libel in Jameel where Mr. Jameel’s company was said to be engaged in terrorist financing.  The company was awarded general damages of £10,000 (about $150,000). 

163.  In my view, a similar level of general damages is called for here.  I would therefore award $150,000 in general damages to Digital UK.

164.  I would award a similar amount ($150,000) as general damages to ARY Traders.  As Mr. Carolan recognised, any damage to ARY Trader’s reputation would be reflective of and derivative from its association with ARY.  To avoid double counting, ARY Traders’ award must thus be significantly smaller than that of ARY.  Given further the principle identified by the majority in Jameel, I think that $150,000 would be the proper amount.

B.2    Special damages

165.  Digital UK claimed special damages in relation to the loss of business said to have been caused by the libel in the Article.

166.  In support of Digital UK’s claim, Mr. Salman Iqbal stated that in his view a decline in the company’s turnover and revenue in 2006 and 2007 were partly attributable to the Article.  I am not satisfied, however, that even a partial causal link between the publication of the Article and Digital UK’s revenue has been established.

167.  In particular, Digital UK’s Financial Statement for the year ending 30 June 2007 makes no mention of the Article as a cause for a decline in revenue.  Instead, the Financial Statement simply attributed the drop to increased competition and an inability drastically to curtail costs and expenses during the same period.

168.  It was suggested that Al-Jazeera pulled out of a contract for Urdu broadcasts in Pakistan as a result of the Article.  However, it appears that the contract was with Digital Dubai, not Digital UK. 

169.  Further, it remained open to Digital Dubai to sue Al-Jazeera for breach of contract as the ARY Group did not accept that Al-Jazeera was entitled to withdraw from its obligations.  It is unclear why no further action was taken. 

170.  Moreover, in correspondence, Al-Jazeera took the view that it could not proceed with the deal reached because in its view ARY could not freely travel in and out of Pakistan.  This view, arising out of several court cases, both civil and criminal, pending against ARY at the relevant time, is said by ARY to be wholly incorrect.  But the evidence is that Al-Jazeera, rightly or wrongly, formed such view and gave that alleged inability to travel as a reason for pulling out.  The correspondence does not expressly cite the Article as a reason for withdrawal.

171.  It was suggested that Digital UK lost a deal with ASTRO as a result of the Article.  But it is far from clear from the minutes of a 20 April 2006 meeting with ASTRO relied upon by Digital UK that it lost a joint venture with ASTRO because of the Article. 

172.  The Article was raised by Mr. Salman Iqbal of his own motion on the last day of a 4-day long conference between ASTRO and Digital UK.  On 20 April 2006 (the last day of the conference) Mr. Lim of ASTRO observed that it was the responsibility of his company “to evaluate the proposal of joint venture”.  Only at that stage did Mr. Iqbal bring up the Article.

173.  I am not able to infer that the Article was any cause of the joint venture with ASTRO falling through, merely because the Article was mentioned at the conclusion of the last day of what was otherwise a detailed examination of Digital UK’s operations by ASTRO. 

174.  It was finally suggested that a possible deal with ESS/Star was lost due to the Article.  Here reliance was placed on minutes of a meeting between ESS/Star and Digital UK on 25 April 2006.  The minutes, however, suggest that ESS/Star were then only scouting out potential business partners (including GEO, Digital UK’s chief competitor).  Everything was at a preliminary stage.

175.  It is true that ESS/Star brought up the Article of its own initiative in discussion with Digital UK.  But I cannot deduce from that slender evidence that the loss of the opportunity with ESS/Star was wholly or partly due to the Article.

176.  In the premises, I do not accept that Digital UK has established that it is entitled to special damages as a result of the publication of the Article.

B.3    Exemplary damages

177.  Mr. Carolan did not press this.  He submitted that, where an editor negligently fails to check up a story, the Court may infer recklessness.  If so, there was a basis (Mr. Carolan suggested) for awarding punitive damages.

178.  I think that ATOL was grossly negligent and irresponsible in allowing the Article to be published in the form that it was. But I do not think that I am able on the available evidence to infer that ATOL was reckless in permitting the Article to appear on its website. 

179.  I come to this conclusion, despite the absence of oral evidence from ATOL. I accept that, had ATOL called witnesses, Mr. Carolan may have put a case of recklessness to them.  By failing to call witnesses, ATOL deprived Mr. Carolan of such a chance. Nonetheless, I do not think that it follows from this that I am bound to find recklessness.  I must also evaluate such evidence as there is and form some view on whether there is a basis for finding recklessness.

180.  It seems to me that a careless and slipshod reading of the available source documents upon which Mr. Lintner may have relied upon, could conceivably have led an editor negligently to authorise publication of Article.  There has consequently been irresponsibility and gross negligence.  But I am not sure that I can go further and hold on the balance of probability that there has been recklessness.

IV. CONCLUSION

181.  The Plaintiffs have succeeded in establishing defamation. ATOL’s defence of qualified privilege fails.  There will be an award of general damages of $1 million in favour of ARY and of $150,000 each to ARY Traders and Digital UK. 

182.  There will be an Order Nisi that ATOL pay the Plaintiffs’ costs to be taxed if not agreed.