HH Prince Moulay Hicham of Morocco -v- Elaph Publishing Ltd

HH Prince Moulay Hicham Ben Abdallah Al Alaoui of Morocco -v- Elaph Publishing Ltd

Reference: [2017] EWCA Civ 29

Court: Court of Appeal

Date of judgment: 27.01.17

The facts of the case

The Claimant is Prince Moulay Hicham of Morocco, first cousin of the current King Mohammed VI of Morocco. The Defendant is Elaph Publishing Ltd, a daily Arab online newspaper, headquartered in London. On 8 October 2014 the Defendant published an article in Arabic on its website concerning a meeting between the Claimant and former boxer Zakaria Moumni in Paris. The Defendant alleged that at the meeting the Claimant encouraged Mr Moumni to report Mounir Al-Majidi, assistant and adviser to the King of Morocco, to the French authorities for making death threats. The article also alleged that the Claimant had arranged a similar plot the previous year against the head of Morocco’s anti-espionage agency. The Defendant removed the article from its website upon receiving a complaint from the Claimant’s solicitors, and on the following day proceedings were commenced.

High Court: Defendant’s application that the words complained of are not defamatory

On 30 January 2015 the Defendant applied under CPR Part 53 PD 4.1 for an order that the words complained of were not capable of bearing the meaning set out in the Particulars of Claim or any other meaning defamatory of the Claimant, and that the claim should be struck out and summary judgment granted for the Defendant.

The Particulars of Claim pleaded that the natural and ordinary meaning of the words complained of was that:

§6.1 that the Claimant had orchestrated a plot to sabotage the image of King Mohammed VI of Morocco whereby, in the course of a pre-arranged meeting at the Fouquet Hotel in Paris on 26 June 2014, he had induced [ ] Moumni: (a) to make false allegations against the King's close aide [ ] Majidi that he, Majidi, had threatened to kill Moumni, and (b) to bring a criminal complaint against Majidi on the basis of such false allegations so that Majidi would be arrested in France;

§6.2 that the Claimant had instructed Moumni to lie to cover up the plot by claiming, falsely, that his meeting with the Claimant at the Fouquet Hotel had been coincidental;

§6.3 that the Claimant had orchestrated a similar plot against [ ] Hamouchi, the head of Morocco's anti-espionage agency, in the February before this, which had resulted in Hamouchi's being called in for questioning by the French judicial authorities, and the Claimant was therefore responsible for the resultant negative impact on French-Moroccan relations.

Dingemans J decided that the words complained of did not sustain the meaning that the Prince had induced Mr Moumni to make false allegations against the King’s adviser. The words meant that the Claimant urged Mr Moumni to raise a case against an aide close to the King, had launched a similar strike against the head of the anti-espionage agency, and that this was part of a campaign to harm the image of the King. Dingemans J said that it is not enough that the words should damage the claimant in the eyes of a section of the public only [Modi v Clarke [2011] EWCA Civ 937]. It was therefore not defamatory to say that a person is working against the interests of a ruler. Dingemans J struck out paragraphs §6.1 and §6.3 of the Particulars of Claim (set out above). He did not strike out paragraph §6.2 as a reasonable reader may conclude that the article meant that the Claimant had lied about the meeting being coincidental rather than planned.

High Court: Claimant’s application to amend the meaning of the words complained of and to add a data protection claim

The Claimant’s solicitors issued an application seeking permission to amend the meaning of the words complained of and to add a Data Protection Act (DPA) 1998 claim to the proceedings.

The new meaning to be added was:

“that the Claimant was endlessly plotting, scheming and weaving machinations in order to damage his country Morocco and its monarch Mohammed VI, who was his own cousin, thereby showing himself to be devious, underhand and disloyal”.

There was also an amendment to what had been §6.1, that “the most recent example of this was a secret plot which was orchestrated to sabotage the image of the King”.

The Claimant contended that the Defendant’s processing of the data in the article was a breach of s.4 (4) of the DPA 1998 as the Defendant had published inaccurate personal data in breach of the first and fourth data protection principles. The Defendant objected to both applications. The Defendant argued that the DPA claim was not sustainable as it was an attempt to fashion a remedy for damage to reputation where one did not exist in the current law of defamation.

Dingemans J refused permission to amend the meaning of the words complained of, referring once again to Modi v Clarke. However, he allowed the DPA claim to proceed in combination with the defamation claim, as the addition had been proposed before a defence had been filed, the Claimant had a principled interest in ensuring an accurate record of his political activities and there was nothing contrary in principle in allowing a DPA claim to proceed in combination with a defamation claim.

Court of Appeal

Both parties appealed Dingemans J’s decision.

Meaning of the words

The Claimant submitted that Dingemans J had been too literal in his reading of the article, and in subsequently dismissing the original and amended meanings, as the pleaded meanings only extended slightly beyond the actual words used.

The Defendant contended that the article implied that the Claimant was pursuing a particular agenda and was disloyal, but this was not defamatory as it fell within the limits of acceptable political criticism as explained in Waterson v Lloyd [2013] EWCA Civ and the case of Rufus v Elliott [2015] EWHC 807 that imputations of disloyalty are not defamatory.

The Court of Appeal held that the case of Modi v Clarke has a narrower application than it was thought by Dingemans J. It is not defamatory in itself to say that someone is working against the interests of a ruler, however it depends on the words used and the particular context. The article included words such as “schemes”, “entrap”, “ploy”, “machinations” and “weave”, all of which are capable of bearing the meaning that the Claimant had shown himself to be underhand, devious and disloyal. The Court allowed the appeal and permitted the amendments to the meaning of the words complained of.

Data Protection claim

The Defendant appealed the addition of the DPA claim, advancing that the case is either a defamation claim, or nothing, and that there would be far reaching consequences if factual inaccuracies in the context of a political debate should be subject to a DPA claim.

The Court of Appeal accepted that doubts had been expressed about the necessity and proportionality of advancing parallel claims, where damaging information had been published that was defamatory. However, different causes of action are directed to protecting different aspects of the right to private life, and the relevant provisions of the DPA include the aim of protection from being subjected unfairly and unlawfully to distress [Law Society v Kordowski [2011] EWHC 3185 (QB)].

The Court of Appeal could see no good reason why a claim under the DPA could not be linked to a claim in defamation. If the defence that the article is not defamatory succeeds, the DPA claim may be an appropriate means of redress.

Conclusion

The Claimant’s appeal was allowed, and the Defendant’s appeal was dismissed.

Comment

This Court of Appeal decision narrows the application of the principle in Modi v Clarke. This means that political commentary is more likely to fall outside what is considered to be acceptable, non-defamatory political criticism.

The decision will also encourage claimants and practitioners to consider adding a DPA claim to defamation proceedings. This may be particularly useful where the serious harm threshold set out in s.1 of the Defamation Act 2013 is not met, or where the words are inaccurate, but not defamatory. However, such claims will not succeed if the Defendant can successfully argue that the publication was in the public interest under s.32 of the DPA 1998.