Just because a statement is only published to a known, small group of people, for example, members of a WhatsApp group, that does not prevent it from being defamatory.
A recent decision of the High Court Riad Tawfiq Al Sadik v Suhad Subhi Sadik  EWHC 2717 (QB) considered alleged libel that had taken place within a WhatsApp group of only 34 people. It wasn’t a full trial, the Court was considering whether to enter a judgment or strike out the claim at an early stage, but nonetheless it’s a useful reminder of some key principles in defamation and an interesting application of those principles to the WhatsApp forum. It’s also a reminder of the challenges of getting a claim struck out early on, and of the importance, the Courts place on the right to have a legal wrong redressed as part of the rule of law.
The parties had already been engaged in property litigation with each other and are close relations. Shortly after the property litigation was settled, the Defendant had taken a photograph of the Claimant and his wife in Pret a Manger near the Royal Courts of Justice, which she sent to the WhatsApp group together with messages which the Claimant alleged were defamatory. Some members of the group were known to the Claimant. Among other things the messages alleged dishonesty by the Claimant including lying on oath, and a failure to respect the sanctity of the Quran. The Claimant made a claim in libel against the Defendant. The Defendant applied for summary judgment and/or that the Claim is struck out, on the basis that:
- The court didn’t have jurisdiction because the Defendant was domiciled outside the UK at the relevant time
- There was no real prospect of the Claimant establishing that the publication was defamatory because it did not cause and was not likely to cause serious harm to his reputation
- The pursuit of the claim was an abuse of process and it should be struck out.
The Court considered the issues of serious harm and abuse of process.
Under Section 1 of the Defamation Act 2013, a statement is not defamatory until its publication has caused or is likely to cause serious harm to the reputation of the claimant. The Court reviewed the case law on serious harm, and the changes introduced by the 2013 Act, namely that the court cannot base the assessment of harm on an inherent tendency of the words to cause harm, there must be some actual serious harm or probable future harm. The Defendant said the Claimant had no realistic prospect of showing he had been caused or was likely to suffer serious harm. The court disagreed. The Court considered the very serious nature of the allegations, striking at the Claimant’s honesty and integrity, the religious component which was capable of exacerbating the harm, the Claimant’s standing and reputation in the Middle East and London, the identity of the person who sent them, namely his wife’s sister, which could cause some to think that there must be some substance to the accusations, the targeted nature of the persons to whom the messages were sent, i.e. family members, and the scale of publication, both directly to the WhatsApp group, and by later likely dissemination to those who do not know the Claimant.
Abuse of Process
On the abuse of process point, the Defendant relied on “Jameel abuse”, which allows a claim to be struck out where “no real or substantial wrong relied has been committed and litigating the claim will yield no tangible or legitimate benefit to the claimant proportionate to the likely costs and use of court procedures: in other words, ‘the game is not worth the candle’.” The court recognised that on the other hand striking out is a draconian action to be used exceptionally, that the value of a judgment is not purely financial, and that the fair resolution of legal disputes benefits society as a whole.
The Defendant argued that because she had never taken the position that the statements were true, in order to be vindicated the Claimant did not need to have a public judgment at trial stating that the statements were defamatory. The Defendant said that because of this plus the high costs to trial (estimated to be £1m) the matter should not proceed to a full trial and the claim should be struck out for abuse of process. The Court rejected this argument, and although it recognised that a trial would cost a significant amount of money (nearly £1m) that was not sufficient to strike out because defamation costs tended to be high anyway and the court could set costs budgets, and there would be a vindication value to the Claimant in obtaining a public judgment if the matter were to go to trial, both at that time and in the future. The court recognised that the WhatsApp messages could be spread to a wider audience over time and their publication would not necessarily be restricted to the members of the WhatsApp group.
It remains to be seen whether this matter will go to trial, but in the meantime, it is helpful to see how the Court viewed the publication on WhatsApp, and also to have this general review of the serious harm test, and the high threshold for achieving a strikeout or summary judgment.
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