Defamation - Jameel Principle

I. Introduction

The Jameel principle is a potential way to strike out a defamation claims in situations where there are very few recipients and where damages are potentially nominal in nature. In the English Court of Appeal decision of Jameel (Yousef) v Dow Jones & Co Inc (“Jameel”), a defamation claim was struck out on the ground that there was no real and substantial tort committed within the jurisdiction of England and thus, permitting the plaintiff to proceed with his claim would amount to an abuse of process. The decision of Jameel has since been cited to stand for the general principle that “a claim which discloses no real and substantial tort is liable to be struck out for being an abuse of process of the court” (the “Jameel principle”).

The Jameel principle has been accepted as law in Singapore . In Yan Jun v AG (“Yan Jun”), the Singapore Court of Appeal (“SCA”), in obiter, accepted that Jameel “contains some general principles that may be applicable in the Singapore context”, though the principle should be “approached with the necessary circumspection by the Singapore courts” given the different set of procedural rules between Singapore and England and the potentially far reaching implications of adopting the principle wholesale.

These comments have led to a more cautious judicial attitude in Singapore towards the application of the Jameel. However, in our views, there are still room to apply the Jameel principles in suitable local cases.

II. Starting Point: Jameel (Yousef) v Dow Jones & Co Inc

In Jameel, a foreign claimant issued defamation proceedings in England against the publisher of a US newspaper in respect of an article posted on an Internet website in the USA. Even though the article was available to the subscribers in England, evidence showed that only five subscribers within the jurisdiction had accessed the article, with three of them being members of the claimant’s camp.

The English Court of Appeal held for the defendant, dismissing the claim on the ground that there was no “real and substantial tort” and thus, it would be an abuse of process to “continue to commit the resources of the English court … to an action where so little is now seen to be at stake.”

The following passage has since been cited as espousing the Jameel principle:

“69 If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.

70 If we were considering an application to set aside permission to serve these proceedings out of the jurisdiction we would allow that application on the basis that the five publications that had taken place in this jurisdiction did not, individually or collectively, amount to a real and substantial tort. Jurisdiction is no longer in issue, but, subject to the effect of the claim for an injunction that we have yet to consider, we consider for precisely the same reason that it would not be right to permit this action to proceed. It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake.”

In reaching its decision, the court considered the recent developments in English law at that time, namely the introduction of the new Civil Procedure Rules and the Human Rights Act 1998. Flowing from these developments, to strike a proper balance between the right of freedom of expression and the protection of individual reputation, the court is required to “bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant's reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.”

The court also considered jurisdictional issues, given that the claim had transnational elements. The question of whether “a real and substantial tort has been committed within the jurisdiction” is relevant in an application to set aside service outside the jurisdiction. Even though the defendants did not challenge the jurisdiction of the English courts, this did not estop them from relying on arguments that could have been advanced in support of such a challenge. This is because the court also has an interest in ensuring that “judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice” and thus, the court should be able to deny a claim on the ground that the claim is of abuse of process.

While vindication was a legitimate reason to bring a claim for defamation under English law, the vindication is provided in the form of an award of substantial damages; the English court is not permitted to make a declaration of falsity at the end of a libel action. Given that the damage to the claimant’s reputation here is minimal, the damages to be awarded and the vindication would likewise be minimal. As such, based on the proportionality analysis, “[t]he cost of the exercise will have been out of all proportion to what has been achieved”.

III. Position in Singapore

In Yan Jun, the SCA applied the Jameel principle to opine, in obiter, that it would serve as a further reason as to why the Appellant’s claim in defamation should fail. There, the appellant was arrested and brought to a hospital for medical examination. The allegedly defamatory statements were made by a doctor and a police officer during the medical examination. Only the appellant, doctor and police officer were in the examination room at the time the alleged statements were made.

The SCA held that the claim in defamation was deficient as a matter of pleading: the appellant’s complaint bore no discernible cause of action and was struck out. The allegedly defamatory statement from the police officer was also covered by qualified privilege. As a further reason to dismissing the claim, the Jameel principle was applied in obiter, given the limited publication of the allegedly defamatory statements.

The SCA noted that the Jameel principle “was decided under a set of procedural rules which are fundamentally different from those in Singapore” and given that the principles entails “the (potentially far reaching) proposition that an action may be struck out on the basis that the publication of the defamatory material is limited, or the amount claimed as damages is de minimis”, the principle should be approached with “the necessary circumspection by the Singapore courts”.

However, leaving aside the differences in procedural rules between England and Singapore, “Jameel also contains some general principles that may be applicable in the Singapore context”. The real concerns relate to the application of the principle. On the facts, the case was far from being a borderline situation and thus, the Jameel principle would apply.

In determining whether there has been a real and substantial tort, it cannot ‘depend upon a numbers game’; “it is not difficult to conceive of claims for slanders or libels with limited circulation which would cause the claimant great embarrassment or distress or which might blight his financial prospects.”

The analysis is based on the principle of proportionality:

“The question of whether it is or is not proportionate for the proceedings to continue is answered by the court with reference to what is in essence a cost-benefit calculation, ‘cost’ in terms of the parties’ costs and, perhaps more importantly, the impact upon the court’s increasingly hard-pressed resources, and ‘benefit’ in terms of the true value to the claimant of any realistically available remedy.”

In Lee Hsien Loong v Leong Sze Hian (“Lee Hsien Loong”), the High Court (“HC”) raised some restrictive points in applying the Jameel principle in Singapore and on the facts. Similar points were also raise in Qingdao Bohai Construction Group Co, Ltd v Goh Teck Beng.

IV. Conclusion

As it stands, the Jameel principle is arguably still good law in Singapore. The Jameel principle would benefit from a more concrete foundation, such as a statutory one. We believe that there should still be grounds to raise Jameel principle in appropriate cases to expand on the current jurisprudence.

This article is prepared with the assistance of our intern, Mr. Chung Ee Wen.

For queries on defamation, you may contact our Head of the Defamation and Reputation Protection Practice, Mr. Wilbur Lim, at wilbur.lim@wmhlaw.com.sg or 6514 6351.

Disclaimer: The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.