Fake News – Memes, Terrorism and Jurisdiction

Nadhim Zahawi v Press TV & Press TV Limited

1. This libel case was brought by Nadhim Zahawi, the Conservative MP for Stratford-on-Avon against Press TV, the First Defendant, an English language news and documentary network based in Iran. It is affiliated with the State owned Islamic Republic of Iran Broadcasting. The Second Defendant is a UK Limited company. On 15 July 2015, Press TV published on its website an article headed “Report: Tory MP behind ISIL oil Trade”. That article alleged that Mr Zahawi had traded oil from ISIL/Daesh to Israel, thereby funding and profiting from trade with a terrorist organisation. The article was published on the same day that Mr Zahawi had commented negatively on the Iranian nuclear deal in the House of Commons.

2. Although no mainstream media published the allegations (I assume because they all have excellent legal departments), the article was quickly picked up by other news websites, news aggregators, blogs and on social media and became the subject of enquiries by mainstream media in this country. A minor amendment was made to the article reporting Mr Zahawi’s denials through ACK Media Law as his lawyers, but the sting of the article remained. There was a further republication of the sting of the article in October 2015. On 2 December 2015 the House of Commons debated the case for military action against Islamic State in Syria, following which the allegations went viral on social media. A large number of Twitter and Facebook allegations were removed following representations by ACK Media Law, but the proliferation continued.

3. Proceedings were issued on 10 December 2015. On 4 May 2017 Master McCloud gave judgment awarding £200,000 in damages against the First and Second Defendants, together with an injunction prohibiting further publication of the allegations by the Defendants.

Jurisdiction

4. This was an undefended case, but as the First Defendant was based in Iran, this was the first case we are aware of to apply Ahuja v Politika Novine I Magazini D.O.O. [2015] EWHC 3380 (QB) in relation to service out of the jurisdiction in defamation cases. Ahuja was the first reported case to consider Section 9 of the Defamation Act 2013 which applies to an action for defamation against a person who is not domiciled in the UK or in another Member State or a State which is a contracting party to the Lugano Convention. The requirements are now extremely onerous, even where, as in this situation, the Claimant is a British citizen, a UK MP and holds solely a British passport and property in this jurisdiction. Our experience in applying Ahuja leads us to question whether the bar is not now raised too high in respect of very serious libels originating from Defendants outside the jurisdiction against Claimants in this jurisdiction.

5. Pursuant to CPR 6.36 (a) “the Claimant may serve a claim form out of the jurisdiction with the permission of the court if any of the grounds set out in paragraph 3.1 of Practice Direction 6(b) apply”. The principles to apply were summarised in AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2011] UKPC 7:

I. The claimant must satisfy the court that in relation to the foreign defendant to be served, there is a serious issue to be tried on the merits of the claim, such as a substantial question of fact or law or both. There must be a real as opposed to a fanciful prospect of success;

II. The claimant must show that it has a good arguable case and that the claim falls within one of the jurisdictional “gateways” in CPR PD 6B 3.1. In this case the Claimant relied on:

a. 3.1(2) A claim is made for an injunction ordering the Defendant to deal with or refrain from doing an act within the jurisdiction; and/or

b. 3.1(9) a claim is made in tort where (a) damage was sustained or will be sustained within the jurisdiction; (b) damage which has been or will be sustained as a result of an act committed or likely to be committed within the jurisdiction.

III. The court must be satisfied that England and Wales is the proper place in which to bring the claim and that in all the circumstances the court will exercise its discretion to permit service of the proceedings out of the jurisdiction.

IV. Finally, the court should consider what the natural forum is for the pursuit of the claim, in the sense that it is the jurisdiction with which the claim has its most “real and substantial connection” (Ahuja at [20]). This crosses over with Section 9 of the Defamation Act 2013. Section 9(2) provides:

“A court does not have jurisdiction to hear and determine an action to which the section applies unless the court is satisfied that, of all the places in which the statement complained of has been published England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement”.

6. It is unclear at what stage the Section 9 issue should be determined, but given the crossover of factors with the CPR, it was considered appropriate to seek determination alongside permission to serve out.

7. In Ahuja, Tugendhat J observed that the effect of Section 9:

“will be to oblige the court to consider all the jurisdictions where the defamatory statement has been published in order to determine whether the domestic jurisdiction is clearly the most appropriate place in which to bring the action".

However, this is not an end to the matter; the extent of publication is simply a preliminary step. Beyond that:

“the court would wish to take into account such matters as to the amount of damage to the Claimant’s reputation in England and Wales compared with elsewhere, the extent to which publication was targeted at a readership in England and Wales compared with elsewhere and whether there was reason to think that the Claimant would not receive a fair hearing elsewhere”.

That may seem reasonable in abstract, but consider a multi-jurisdictional libel on an internet news website and on social media such as this, where a hostile and unresponsive foreign Defendant refuses to disclose not only the number of views of the defamatory article, but also the jurisdiction of those viewers.

We were forced on behalf of our client to seek expert evidence by analysing Twitter activity to provide the detailed information required by the court.In essence, Tweets were analysed for the basis of their geo-profiling (where a Twitter user had indicated their location) or for other indications of their geographical status.An analysis was thereby possible to show the extent of the Twitter activity and that the majority of people posting, commenting or retweeting the libellous material came from England and Wales.ACK Media Law carried out its own analysis of a selection of Facebook posts showing links to the defamatory material or republications using keywords which suggested the majority of readers were in England and Wales.

8. Evidence was then submitted to demonstrate that the Claimant’s reputation was substantially in the UK rather than abroad. The question also had to be addressed, given the strictures in Ahuja, of whether the Claimant would obtain a fair trial in Iran. An expert in Iranian law therefore gave evidence that due to the fact the First Defendant enjoyed special status as a State affiliated media outlet in Iran, any case would be likely to suffer significant delays through administrative and judicial/political interference. In essence, this was a political case which would not receive a fair and neutral hearing.

9. The court was satisfied on this basis that England and Wales was the most appropriate place to bring an action and that the court had jurisdiction to determine the action pursuant to Section 9 of the Defamation Act 2013. The court ordered alternative service by courier and email, as we had established the consular or other methods of delivery would fail, and that other claims had taken years to be served, if at all. Although the Claimant was successful in his application to serve out, the amount of time and expense necessary to satisfy these requirements, in circumstances where in our view it should have been straightforward for our client to bring proceedings, is inevitably going to prove too much for other claimants. Seeking to prove that no other jurisdiction is appropriate out of all the possible jurisdictions in a social media age can be an extremely onerous task indeed, and particularly in circumstances such as these.

Judgment

10. Turning to the judgment delivered on 4 May 2017, Master McCloud was struck that this was indeed an example of “fake news” (para 2 of the judgment) being calculated to afflict maximum harm on a political opponent. Whilst she noted that Members of Parliament are expected to tolerate more than would be expected of others and have thick skins, she considered “in my judgment the allegations made in the offending publication are so grave that they exceed the scope of that principle. This is not a case relating to legitimate political debate in a democratic society.“

11. She noted that the Twitter republications, and the number of followers, were extensive, even allowing a substantial discount to allow for the fact that not all followers would have seen the Tweets and a proportion of those would not be in this jurisdiction. She also took into account that a number of the retweets were overtly political in nature, such as Stephen Yaxley-Lennon (aka Tommy Robinson) the former leader of the English Defence League. The Master was interested in the definition of a “meme” in a social media context. In a footnote, she lamented that the use of this phrase on social media might strip the concept of its subtlety as articulated in Dawkins’ “The Selfish Gene” (para 29 fn1), and proposed a libel analogy for a meme;

“One might better characterise the entire sting of a libel as being closer to a “meme” in the proper sense, and the extent to which people believe it and spread it, as being the “survival” of the meme down the cultural generations"

An elegant thought and one that bears closer examination.

12. Notably the Master felt that the fact that the allegation was not published in the mainstream media was of little comfort and it had led to suggestions in some quarters of a mainstream “media blackout”. Interestingly she accepted that there was severe damage to the Claimant’s reputation despite mainstream media refusing to publish such untrue allegations.

13. Master McCloud accepted that despite the normal thick skin expected of an MP, the Claimant had suffered “genuine and serious distress” which was increased by the fact that he is from a Kurdish background and ISIL/Daesh is in armed conflict with the Kurds. There was the added meaning for him that he was in collaboration with those destroying his own people of origin.

14. In addition to the £200,000 worth of damages an injunction was granted restraining future publications by the Defendants.

Comment

15. This case, given the acknowledged "exceptionally grave" nature of the allegations, highlights some of the difficulties thrown up by the stricture in Ahuja with regard to service on a foreign defendant. Strictly interpreted, a British claimant now faces the same hurdles in evidence as a foreign claimant who may be forum shopping, which adds a greater level of expense and complexity at the outset. Judicial signalling that this only applies in particular circumstances would assist.

Susan Aslan is a partner of ACK Media Law LLP

Victoria Jolliffe of 5RB was instructed on behalf of Mr Zahawi and appeared before the Master in relation to the jurisdiction application and in relation to damages

A copy of the judgment can be downloaded here.