First published on Brett Wilson Media Law Blog on 1 February 2017
Prince Moulay Hicham Ben Abdallah Al Alouai of Morocco (‘the Prince’) has won an appeal against Elaph Publishing Limited (‘Elaph’) that now allows him to advance a claim under the Data Protection Act 1998 (‘DPA’) and also overturned a previous ruling that the words published were not capable of being defamatory.
The Prince’s claim relates to an article that was published in Arabic on Elaph’s news website on 8 and 9 October 2014. The allegations made against the Prince were that he had encouraged the former boxer Zakaria Moumni to (i) make public statements that Mounir Majidi, one of the Moroccan King’s closest advisers, had threatened to kill him, and (ii) make a judicial complaint against him. The ultimate aim was supposedly to ‘sabotage’ the King. The Prince claimed his meeting with Moumni was coincidental. The article also alleged that the Prince had been involved in a similar plot the previous year against the head of Morocco’s anti-espionage agency.
Elaph had removed the article following a complaint, however the Prince issued proceedings due to the fact that Elaph had not published any form of correction nor given an undertaking not to re-publish.
The Judge’s first judgment
In the judgment of Dingemans J in Moulay Hicham v Elaph Publishing  EWHC 1084 (QB) the Judge considered whether the words were capable of bearing a defamatory meaning. Following the decision of Modi v Clarke  EWCA Civ 937 he held that it was not capable of being defamatory to say that the Prince was working against the interests of a ruler as this would only damage his reputation in the eyes of those members of the public interested in the politics of Morocco. The Judge therefore struck out the relevant sections of the Particulars of Claim.
The Judge’s second judgment
As a result of the Judge’s first judgment, the Prince applied to amend the Particulars of Claim and to add a new claim under the DPA. Elaph resisted both applications. In the his decision of Moulay Hicham v Elaph Publishing  EWHC 2021 (QB), Dingemans J rejected the application to amend the Particulars of Claim for the same reasons given previously, in reliance on Modi v Clarke, however allowed the Prince to bring a new claim under the DPA, concluding that there was ‘nothing contrary in principle in allowing a DPA claim to proceed in combination with a defamation claim.’
The Court of Appeal decisions
The Prince appealed Dingemans J’s decision on meaning. In the Court of Appeal decision of Prince Moulay v Elaph Publishing  EWCA Civ 29, the Court allowed the Prince’s appeal and permitted the relevant amendments to the Particulars of Claim. It held that Modi v Clarke ‘is support for a more limited proposition than the Judge was persuaded to accept.’ The context and specific words used in the article (‘schemes’, ‘entrap’, ‘ploy’, ‘machinations’ and ‘weave’) were capable of bearing the meaning that the Prince had shown himself to be devious, underhand and disloyal.
Elaph cross-appealed the judge's decision to allow the Prince to advance a DPA claim. Elaph had argued that the claim should be a defamation claim or nothing, and said that the DPA claim not been raised in either the original letter of complaint or the original pleading. The Court however disagreed and held that there was no reason in principle why a DPA claim could not be linked to a defamation claim and if Elaph were able to argue that the article was not defamatory of the Prince, then he should be entitled to an alternative means of redress via the DPA. However the Court did warn that such cases would require very careful case management to ensure that the litigation was just and proportionate.
Both decisions provide encouragement for Claimants. The decision on meaning is a useful distinguishing of Modi v Clarke and widens the parameters in which a defamation claim can be initially advanced, although this will only be applicable in specific circumstances. The decision to allow the Prince to bring a DPA claim in addition to a defamation claim means that this should always be considered as another potential tool for a Claimant to use in trying to achieve redress.