On 27 November 2023, the High Court handed down judgment on the Defendant’s application for summary judgment in Iqbal v GEO TV Ltd [2023] EWHC 3024 (KB)

Background

This claim has its origins in the fractious arena of Pakistani politics. The Claimant Salman Iqbal is the founder and president of ARY Digital Network, one of the major news broadcasters in Pakistan. The Defendant, Geo TV Limited, is also a leading broadcaster in Pakistan. The parties have history; in 2016, the High Court awarded Mr Shakil-ur-Rahman, the founder of Geo TV, £185,000 following a successful libel claim against ARY News (Shakil-Ur-Rahman v ARY Network Ltd & Anor [2016] EWHC 3110 (QB)).

The Claimant sued over a series of broadcasts published by the Defendant on GEO News on 19 and 20 May 2022. These broadcasts centred on a political rally held by the Pakistan Muslim League (Nawaz) (“PML-N”) on 19 May. The PML-N is one of Pakistan’s largest political parties. The main speaker at the rally was Maryam Nawaz Sharif, the vice-president of PML-N. On 19 May 2022, the Defendant broadcast the rally live on its channel. Throughout the broadcast, the Defendant also provided a detailed, near contemporaneous written summary of what was said via a red ‘ticker’ at the bottom of the screen. At the rally, Ms Sharif spoke for around half an hour, during which, on the Claimant’s case, she made allegations that meant that the Claimant:

“(a) illegally smuggles gold; and (b) participated in a corrupt relationship with Imran Khan while Mr Khan was Prime Minister of Pakistan, which resulted in the Claimant, in return for his political support through ARY for Mr Khan’s efforts to undermine the Pakistani state, dishonestly gaining enormous financial advantages which he would not otherwise have properly and lawfully obtained, including illicit gifts and tax rebates of 10s of billions of Rupees, and to acquire World Call, a company worth 4 billion Rupees, at a complete undervalue without any due process, thereby stealing massive funds from the Pakistani state.”

In addition to the live transmission of the rally, the Claimant complained about a series of hourly bulletins broadcast on the Defendant’s channel following the rally and which summarised Ms Sharif’s allegations against the Claimant.

The Summary judgment application

The Defendant applied for summary judgment under CPR r. 24.2 on the basis that the Claimant had no real prospect of succeeding with his defamation claim because of the strength of a defence of statutory qualified privilege under section 15 of the Defamation Act 1996. This section provides that:

“(1) The publication of any report or other statement mentioned in Schedule 1 to this Act is privileged unless the publication is shown to be made with malice, subject as follows.”

Part II of Schedule 1 to the 1996 Act (as amended) protects the following:

“11A A fair and accurate report of proceedings at a press conference held anywhere in the world for the discussion of a matter of public interest.” 

“12(1) A fair and accurate report of proceedings at any public meeting held anywhere in the world.”

The section does not afford protection to publications “to the public, or a section of the public, of matter which is not of public interest and the publication of which is not for the public benefit.” (s.15(3) Defamation Act 1996). Furthermore, a ‘public meeting’ for the purposes of the Act “means a meeting bona fide and lawfully held for a lawful process and for the furtherance or discussion of a matter of public interest, whether admission to the meeting is general or restricted.”

HHJ Lewis (sitting as a Judge of the High Court) summarised the issues before the Court as follows:-

  • Whether Ms Sharif’s address falls within 11A or 12(1) of Part II of Schedule 1 to the 1996 Act, namely whether it was given at a public meeting or alternatively a press conference held for the discussion of a matter of public (“Issue 1”);
  • Whether the live broadcast can be said to be a “report” of the proceedings (“Issue 2”);
  • Whether the broadcasts complained of constitute fair and accurate reports (“Issue 3”);
  • Whether the broadcasts complained of satisfy section 15(3) and were about a matter that was of public interest and were published for public benefit (“Issue 4”); and
  • Whether the broadcasts were published maliciously (“Issue 5”).

Decision

The Judge found, with little difficulty, that the rally was a public meeting for the purposes of paragraph 12 of Schedule 1 to the Defamation Act 1996. The meeting was a ‘genuine public meeting’ held in advance of elections; it was organised and promoted in advance and anyone could attend. The Judge found that there was no requirement, under the first issue, for the meeting to be balanced or impartial [42]. Given the Judge’s findings, he did not need to consider whether the rally was a press conference.

Issue 2 was also decided in the Defendant’s favour. Although the term “report” is not defined in the 1996 Act, the Judge found that it could include a live broadcast of what a speaker is saying at a public meeting. The Claimant had argued that it would be a “corruption of the language of the statute” to treat a live broadcast as a “report” of proceedings [44]. The Judge rejected this argument given that the purpose of the statutory qualified privilege in section 15 is to enable citizens to participate in the public life of their society [46-47]. To exclude live broadcasts would defeat this purpose.

To attract the privilege under section 15, reports must also be fair and accurate.  The question here was not, as the Claimant argued, whether the bulletins could be said to be fair and accurate reports of the rally as a whole, but rather, whether they were fair in relation to the claimant [53]. A publisher is entitled to select what they report, and in this case, the Defendant was entitled to exercise its editorial discretion and report on the allegations against the Claimant, albeit these formed only a limited part of what was said on the rally. The Defendant’s report was an accurate summary of what was said and fair as regards the Claimant [56].

The requirements that the words be of “public interest” and for the “public benefit” are cumulative questions of fact [58]. The Claimant argued that it could not be in the public interest to broadcast defamatory allegations in circumstances when contradictory information is in the public domain, is easily ascertainable and where the Defendant had no asserted belief in their truth. The Defendant argued that it would not be unduly onerous and not in the public interest to require the media to fact-check political speech before broadcasting it, nor was it realistic or desirable to expect the media to contextualise every statement with a “detailed history of claim and counterclaim”. There is, the Defendant submitted, additionally, a public interest in reporting what a prominent political figure says, whether true or false [70].

The Judge found that it was not “readily apparent” that the Defendant had satisfied section 15(3). The Defendant reported serious allegations expressed in contentious and inflammatory language. The context in which the allegations were made, a political rally in Pakistan, also left the question of public interest in doubt; unlike a UK politician speaking at a rally in the UK, Ms Sharif was under no obligation to comply with UK law and it was unclear whether her address “had sufficient status for it to be said to have been in the public interest and for the public benefit for it to be reported to a UK audience” [82]. Furthermore, the question of what was known, or should have been known, by the Defendant remained unclear and could not fairly be determined summarily [84].

Although the Judge did not, as a result of his finding in relation to Issue 4, strictly need to consider the question of malice, he found in any event, that it was not something that could appropriately be determined on a summary basis. Although the Judge acknowledged the Defendant’s submission that the Claimant’s case on malice was improperly or at least incompletely pleaded, the Court would need to consider what the defendant knew, or should have known, in respect of the allegations made by Ms Sharif about the Claimant [93]. This is something that could only be assessed at trial. The Defendant’s application for summary judgment was, therefore, dismissed.

Comment

Though much of the judgment is confined to the specific facts of the claim, it touches on important questions relating to the media’s responsibilities when reporting statements made at a public meeting, and specifically, the extent to which the media are under a duty to contextualise contentious and defamatory statements made at such a meeting. What is clear from the judgment is that the privilege afforded by section 15(3) should not be taken for granted and even reporting of what might be characterised as political speech will not automatically attract the provision’s protection, especially where the statements in question includes allegations that are disputed, and/or where information exists in the public domain that readily contradicts the allegations in question.

The judgment is also a useful reminder of the difficult of determining malice on a summary basis. Malice, in the context of qualified privilege, means “publishing a statement that the defendant knew, or was reckless (in the sense of complete indifference) as to its truth or falsity.” Without incontrovertible evidence either way, the Court will usually require the benefit of live witness evidence to make a finding.