The High Court did not suggest that the remarks were not defamatory; it just said that there is no presumption that "substantial publication" of an item has taken place within the court's jurisdiction. "Substantial" in this context means sufficient readers to justify a judgment.
Ethiopian-born businessman Mohammed Hussein Al Amoudi, who normally lives in Saudi Arabia but spends around two-and-a-half months a year in England, sued Swiss resident Jean Charles Brisard and his Swiss company, JCB Consulting International SARL.
Brisard claims to be a world expert on terrorist financing. In two reports on JCB's site he made references to Al Amoudi. These suggested that Al Amoudi may be "a knowing participant in the economic, financial and/or terrorist networks of the terrorist Osama Bin Laden". Al Amoudi sued for defamation.
Although the offending documents were removed in Spring 2004, Al Amoudi told the High Court that the offending words had been published on JCB's site "to a substantial but unquantifiable number of readers in this jurisdiction". The court's deliberations were over Al Amoudi's demand for summary judgment – i.e. he was hoping to win his case without the need for a trial.
Brisard and his company based their defence on an argument that either the reports had not been downloaded within the jurisdiction of the court, or that if they had been downloaded, it was only by Al Amoudi's legal team, friends and business associates – and therefore, they claimed, "reliance upon such publications amounts to an abuse of process".
If any publication were proved, continued the defendants, it would result in "no more than nominal damages" – so the cost of pursuing the action would be "wholly disproportionate to the outcome". English courts will consider the number of readers of a libellous statement in gauging the level of damages to award.
Traffic figures showed, according to the judgment, that "the number of hits on the website from the United Kingdom has been few" – although some of the logs were missing. The monthly stats showed "a large number of hits" where the country was unknown or unrecorded; but Mr Justice Gray said the question of whether some of these came from England remains open. (There are no figures in the judgment and no analysis of the distinctions between hits, page impressions and unique visitors.)
The traffic was important for another reason. An internet libel case last year – coincidentally involving allegations about another businessman's links with Bin Laden – established that a claim based on nominal readership could be struck out as an abuse of the court's process.
Al Amoudi argued in the present case that "it should be assumed, unless and until the contrary is proved, that material available on the Internet will have been read by a substantial number of readers in the jurisdiction."
Not so, said the defence team. Publication over the internet takes place if and only if the material is accessed and downloaded by a third party within the jurisdiction. Sure, a jury at trial may draw an inference to this effect, it acknowledged; but at this interim stage, Al Amoudi does not and cannot assert that a jury would be perverse not to do so.
Mr Justice Gray concluded that the claimant must prove that the material was accessed and downloaded. He also made reference to last year's case – Yousef Jameel's action against Dow Jones, in which only five people in England had been shown to have clicked a link to an allegedly defamatory item, including Mr Jameel's solicitor and two of his business associates. Since the damage to Mr Jameel's reputation was minimal, in the Court of Appeal's view, only "very modest damages" would have been available after what would have been a lengthy and expensive trial. So the case was thrown out.
Mr Justice Gray suggested that the Court of Appeal in Jameel's case would not have supported a presumption of publication. He continued: "I am unable to accept that under English law a claimant in a libel action on an Internet publication is entitled to rely on a presumption of law that there has been substantial publication."
Accordingly, the application for summary judgment was refused on 12th May. Last Tuesday, the High Court was told that the parties had agreed settlement terms.
A statement was read in court for Mr Alamoudi, saying he is "implacably opposed to terrorism in all its forms."
"He has never had any connection whatsoever with Osama bin Laden, Al Qaeda or any other terrorist organisation or group," it continued.
Mr Brisard confirmed that information that led him to make the allegations "turned out to be false," and admitted wrongly accusing Mr Al Amoudi of having terrorist connections. He and his company said they "deeply regret" the embarrassment caused and offered their "sincere apologies".
"The parties have come to terms, which remain confidential, as to damages payable to Mr Al Amoudi and the costs of these proceedings," read the statement.
Les Christy, a barrister and senior associate with Pinsent Masons, the law firm behind OUT-LAW.COM, described the case as "a helpful illustration of the principle" in the Jameel case last year. "If the potential damages which might be recovered are negligible – because there has been no real harm to the claimant's reputation in this jurisdiction – and out of proportion to the potential expense of the proceedings and vindication that the claimant might expect to obtain at trial, then the court may dismiss those proceedings at as an abuse of process," he said. "This principle dovetails with the overriding objective of our Civil Procedure rules which require Courts to deal with claims in a manner which is proportionate to the amount of money involved."