High Court Addresses Defamation and Qualified Privilege in Dr Ashti Hawrami Case
Introduction
In the recent judgment of Dr Ashti Hawrami v Journalism Development Network Inc & Ors, the High Court of Justice of the King’s Bench Division addressed several substantive legal principles, particularly pertaining to the law of defamation as it relates to qualified privilege and the appropriate approach to summary judgment in such matters. The case provides a wealth of insight into the delicate balance the courts must strike between upholding the right to a fair trial and protecting freedom of speech.
Key Facts
The controversy centers around Dr Ashti Hawrami, who brought a defamation claim against the Journalism Development Network Inc for allegations made in an article relating to his involvement in oil dealings in Iraq. The claimant alleged that the defendants, through their publication, wrongfully implied he had engaged in corrupt activities during his tenure as Minister of Natural Resources in the Kurdistan Regional Government (KRG) of Iraq.
The defendants advanced various defenses, one of which was qualified privilege, predicated on their publication being a fair and accurate report of legal proceedings referred to as “the Excalibur Litigation.”
Legal Principles
The court addressed the following key legal principles:
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Qualified Privilege: Under section 15 of and Schedule 1 to the Defamation Act 1996, a publication deemed to be a fair and accurate report of legal proceedings is protected by qualified privilege, unless shown to be made with malice.
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Interaction of ‘Meaning’ and Qualified Privilege: The court must first determine whether the material falls under qualified privilege before assessing ‘meaning’ for the purposes of defamation, as set out by Curistan v Times Newspapers.
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Summary Judgment: An application for summary judgment must satisfy that there’s no real prospect of successfully pursuing a claim or defense and that there is no other compelling reason for a trial, in line with Civil Procedure Rule 24.3.
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Fair and Accurate Reporting: A report does not have to be verbatim and can be selective as long as it presents a fair and accurate impression of the events covered. Misstatements of fact that materially impinge on the claimant’s reputation negate the fair and accurate report defense.
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‘Intermingling’ Concept: The concept of ‘intermingling’ is key where the addition of non-privileged material to a privileged report can lead to a loss of privilege if it results in a report that is no longer fair and accurate.
Outcomes
The court adjudicated that, excluding the amendments, the defendants had real prospects of successfully arguing that the article was a “fair and accurate report” of the Excalibur Litigation. Therefore, for most of the article, the defense of qualified privilege could not be summarily dismissed. However, the court identified certain paragraphs which did not accurately reflect the Excalibur Material, and it was ruled that qualified privilege would not cover these specific parts.
It was also determined that the defendants’ qualified privilege defense was valid regarding the amendments, as these introduced clarifications that aligned the report more closely with the Excalibur Judgment.
Conclusion
The case of Dr Ashti Hawrami v Journalism Development Network Inc & Ors underscores the court’s meticulous approach to ensuring that publications benefit from qualified privilege only when they genuinely meet the statutory requirements of fairness and accuracy in reporting legal proceedings. This judgment reaffirms that where defamatory meanings are drawn from privileged material, a careful analysis is necessary to ensure that justice is duly served for both the claimant and the defendants. The court’s meticulous distinction between reportable content under qualified privilege and content that does not qualify serves as a guidepost for legal practitioners and journalists in future defamation cases.