QB-2022-002648 - [2025] EWHC 2565 (KB)

Immediate points

With regard to sources, the Defendant’s pleaded case with regard to each of the publications is that “The Defendant was told this by reliable sources from within the ISI, military intelligence and the army who he cannot name because their lives, and the lives of their families, will be imperilled if he does and he has promised not to identify them”. The pleaded case also pleads steps taken to verify. In some instances, the pleaded steps involved consulting extraneous materials, such as “research papers” and international media reports. In most instances, however, the pleaded case on verification is or includes: “The Defendant made every effort [in some instances “strenuous efforts”] to verify the allegation, including cross-verification with sources in the military and political establishment of Pakistan”.

The Defendant’s evidence about sources is in part to like effect. At [20] of the DWS he states: “I continue to maintain a credible network of sources within the ISI and the military, including but not limited to the political and bureaucratic circles of Pakistan”. Further: (1) with regard to the first publication, the Defendant states: “The information I shared was not concocted out of thin air but rather derived from personal experiences and corroborated by insights shared with me by trusted colleagues who currently serve within the ISI, an organisation with which I had deep ties. However, for their safety and security, I must withhold their identities” (DWS, [25]); and (2) with regard to the ninth publication, he states: “The mention of [the Claimant] and Faheem Raza in the tweet was based on information I received from credible sources and was not intended to falsely implicate them in any wrongdoing. It was simply an expression of my belief that they may have been involved in orchestrating the alleged fraud and wrongful arrest” (DWS, [64]).

In fact, however, the Defendant does not state with regard to any other publications that he relied on “trusted” or “credible” sources within the ISI, the military or the establishment. Nor does he state, in any instance, that he sought to obtain verification from such sources.

The Defendant produced no contemporary documents whatsoever evidencing either what he was told by his sources, or the steps he took to obtain verification. He provided no explanation for this in his written evidence. The gist of his oral evidence, however, was that all the material input from his sources was provided electronically or over the telephone, possibly through the medium of one or even two intermediaries or cut-outs, and that any contemporary electronic data was wiped out, perhaps as a result of being set up to self-delete after a short interval, in order to leave no trail which could lead back to the source. At one stage during the course of the trial the Defendant referred to written records in what he described as diaries but were later clarified as being more akin to notebooks, which had not been disclosed, and which it appeared might contain some supporting contemporary records, but he later clarified that they contained nothing material to the issues in the case.

Assuming, without deciding, that the Defendant’s case as to the need to safeguard his sources is correct, both an inability to name sources and the steps that are said to have been taken as to records which could lead to identification of sources are readily understandable. In any event, a journalist’s refusal to identify a source should not be held against them. However, that does not mean that the lack of contemporary written records should be disregarded. For example, if a source told the Defendant that the Claimant had participated in meetings to discuss election manipulation (the second publication) or had registered a complaint against the Defendant (the eighth publication) there is no obvious reason why a contemporary note or jotting could not have been made by the Defendant recording what information he was given, and in what words, in a form which would do no more to identify or to lead to the identification of the source of the information than publication of the allegation itself. Similarly, any efforts that he made to obtain verification could have been recorded by him in terms which would not jeopardise anyone, for example detailing how many calls were made and when. The fact that he has nothing to produce is remarkable.

The combined effect of the lack of any contemporary record about the nature of the source material or the attempts to verify is to leave the Court in great difficulty in the present case in assessingLord Nicholls’ third to fifth factors, namely “3. The source of the information. Some informants have no direct knowledge of the events. Some may have their own axes to grind … 4. The steps taken to verify the information. 5. The status of the information.”

For example, the second publication relates to alleged meetings between the Claimant and Asif Ali Zardari to discuss election manipulation. The Defendant’s pleaded case as to sources is “reliable sources from within the ISI”, and his pleaded case concerning “every effort to verify” is one of cross-verification with military and political sources. The DWS contains no evidence as to the source(s) for this publication, and no evidence as to the steps taken to verify it, although it does state “Mr Zardari is known to be allegedly involved in corruption and political manipulation at [sic] Pakistan, just like the ISI” (DWS, [33]). As there is no suggestion that anyone other than the Claimant and one other person attended these alleged meetings, neither of whom can realistically be suggested to be one of the Defendant’s sources, and there is also no suggestion that any such meetings were publicised in any way, questions arise as to whether the Defendant in fact believed whatever source(s) told him that such meetings had taken place, and whether, if he had any such belief, that belief was reasonable. On the face of it, the Defendant’s source(s) could not have had any direct knowledge of these alleged meetings. (If they had, they would form part of a small pool, such that publication of the article would, presumably, identify them or lead to a serious risk of identifying them.) Therefore, they must have obtained the information that they claimed to be in a position to pass on by some other means. However, neither the Defendant’s pleaded case nor his evidence provides any clue as to why they were in a position to provide that information, or why it was reasonable for the Defendant to regard them as reliable. In his oral evidence, the Defendant suggested that actions taken towards election rigging would be the subject of reporting back within the ISI, and accordingly that persons within the internal ISI chain of command would be in a position to provide information about meetings of the kind alleged. However, leaving to one side that this explanation was not previously provided by the Defendant, if making that point at trial did not place his source(s) in jeopardy, there is no reason why a contemporary note reflecting this should not have been made. There is, in addition, a question (which is of general application to all the publications) of whether the Defendant’s claimed source(s) may have had an axe to grind against the Claimant. There is no evidence, and certainly no contemporary record, that the Defendant considered or investigated this issue at the time.

In these circumstances, there is no contemporary material which assists the Court in assessing the Defendant’s thought processes at the time of publication of any of the publications complained of. The authorities explain why, for this and other reasons, the lack of documents recording or evidencing the decision-making process prior to publication can harm the prospects of success of a public interest defence. In my judgment, those factors apply in the present case. In fact, they are bolstered because there is no real detail even in the Defendant’s trial evidence either that he believed the particular allegations concerning the Claimant that he published, or as to why any such belief was reasonable. In this regard, it is important to bear in mind that what s4(1)(b) requires is a belief that the publication of “the statement” is in the public interest, such that what is required is a belief concerning the words complained of, rather than a belief concerning the defamatory imputation which those words convey: see Doyle v Smith [2019] EMLR 15 at [74]-[75].

Indeed, as already touched on above, the tenor of the Defendant’s evidence is not that he believed, or reasonably believed, the specific allegations against the Claimant that the publications contain, but is instead that he was commenting on the position in Pakistan more generally. For example, with regard to the first publication, the DWS does not set out a focussed basis, in terms of information provided to the Defendant, for the allegation that the Claimant had taken complete control of the Lahore High Court, but instead states “The Tweet in question was a commentary on the political situation in Pakistan, based upon intelligence gathered and analysis drawn thereafter, specifically regarding the alleged influence of certain individuals over political processes” (DWS [25]) and “[this] is a matter that affects the fabric of our nation, and as a patriot deeply invested in the welfare of Pakistan, I felt compelled to share my perspective” (DWS, [26]).

This leads on to another point, concerning meaning. In summary, for purposes of s4, where a journalist intended a meaning that is less defamatory than the single natural and ordinary meaning of the publication, the reasonable belief of the journalist falls to be assessed by reference to the less damaging meaning - unless the natural and ordinary meaning is one obvious possible meaning. In the present case, in my judgment, the natural and ordinary meaning of all or many of the nine publications in issue was, at lowest, one obvious possible meaning. In at least some instances, that is an understatement. For example, the third publication states that “black sheeps like Brigadier Faheem and Rashid are not even one per cent of Pakistan Army and ISI”, and it is impossible to see how this can be regarded as anything other than an accusation that the Claimant is a “black sheep”. Further, the third publication goes on to state that “silent soldiers” will “behead them (i.e. the two Brigadiers) at the right time”, which makes it plain that being a “black sheep” is a serious matter. However, the Defendant’s evidence is “It was not my intention to defame Mr Rashid Naseer personally, but rather to express concerns about the conduct of certain individuals based on information available to me from my ex-colleagues in the military” (DWS, [38]). The attempt to create clear water between the application of a defamatory epithet to two individuals, both of whom are clearly identified in the third publication, and one of whom is the Claimant, and an expression of “concern” about “certain individuals” seems to me both implausible and unconvincing. Accordingly, in each instance, whether the Defendant reasonably believed that publishing the statement complained of was in the public interest falls to be assessed by reference to the natural and ordinary meaning of the publication.

This point alone is probably sufficient to mean that the defence under s4 cannot succeed, although it may be necessary to consider whether it holds good for all nine publications. The key consideration here is that the journalist’s state of mind falls to be assessed at the time of publication. The issue, stated shortly, is how can a journalist hope to prove that they believed, let alone that they reasonably believed, that it was in the public interest to publish a statement that they disavow that they had any intention of publishing? It is necessary to look at matters in the round and to accord due latitude to editorial judgment. Even so, it seems to me that it is one thing to recognise that a journalist who, say, intends to publish nothing more than there are “reasonable grounds to suspect” an individual of wrongdoing (for example, being instrumental in election rigging) but instead publishes that the individual is “guilty” of that same wrongdoing may nevertheless be entitled to rely on s4, but quite another to say that a s4 defence is available to a journalistwho, for example, intends to express “honest opinion and analysis regarding … political dynamics” and does not intend to defame X, but “rather to engage in political discourse and express concerns about the integrity of the electoral process”(see the Defendant’s evidence concerning the second publication) but who in fact publishes a specific allegation that X allegedly attended several meetings to discuss election manipulation (compare the second publication itself).

Allied to this, when considering “all the circumstances of the case”, it may well be relevant to have regard to other so-called Reynolds factors.These include (1) the seriousness of the allegation – and, in the present case, as Mr Harding accepted, all the allegations are serious; (2) the urgency of the matter – and, in the present case, although this was not pressed in argument before me, I am prepared to proceed on the basis that this factor favours the Defendant; (3) whether comment was sought from the Claimant – and, in the present case, the Defendant accepted that no attempt was made to seek any comment from the Claimant; (4) whether the publications contained the gist of the Claimant’s side of the story – and, in the present case, self-evidently, and perhaps inevitably as no comment was sought from the Claimant, none of the publications contained any hint of his side of the story; (5) the tone of the publications – and, in the present case, the Defendant did not “raise queries” or “call for an investigation”, but instead “adopt[ed] allegations as statements of fact”; and (6) the circumstances of the publications, including timing – and, in the present case, I consider that this factor adds nothing to the other factors, including “urgency” (which I have addressed above). Overall, therefore, these factors weigh heavily against the Defendant.

In particular, the fact that numerous serious allegations were made (i) as statements of fact and (ii) without any attempt to seek comment from the Claimant militates strongly against the conclusion that whatever subjective belief the Defendant may have had was a reasonable belief. As to (i), it would have been open to the Defendant, in the words of Lord Nicholls, to raise queries or call for an investigation, and not to adopt as statements of fact the specific allegations concerning the Claimant with which the Defendant says his sources provided him. There is no evidence that the Defendant considered these alternatives at the time of publication, although the tenor of his evidence for trial (such as that he intended “an expression of belief” that the Claimant “may have been involved” in wrongdoing) is more consistent with them than with his published statements of fact. As to (ii), I am unable to accept the suggestion (put forward by the Defendant in his oral evidence) that the Defendant had no means of reaching, or at least of attempting to reach, the Claimant. As the Claimant occupied a senior position in the ISI, it seems to me unlikely that any journalist wishing to convey a message to the Claimant would have been unable to do so, if not directly at least through the medium of the headquarters of the ISI. In my judgment, the Defendant is likely to have been in a better position than most to do this, as his extensive contacts in the ISI and the military could surely have assisted him if he had asked them. In any event, if the Defendant truly was unable to make any contact with the Claimant, that alone pointed to the need for caution in the tone and content of what he elected to publish.

If contact had been attempted, it is uncertain whether and if so in what terms the Claimant would have replied. That does not negate the fact that no attempt to contact him was made. Indeed, one obvious potential means of verifying the allegations was to ask the Claimant if they were true. In my judgment (see Axel Springer)there were no “special grounds” in the present case which dispensed with the “ordinary obligation” of the Defendant, as a journalist, “to verify factual statements that are defamatory of private individuals”.

The general thrust of Mr Lemer’s cross-examination of the Defendant was to suggest that his true motivation was not as he claimed but was instead to attract an audience, and that to that end he was more than happy to be sensational. In broad terms, Mr Lemer suggested, with regard to each publication, that (i) the Defendant did not, in truth, have any source(s); (ii) the Defendant did not obtain the information that he published from any source(s) he may have had; (iii) if the Defendant obtained the information in question from any source(s) he did not, in fact, believe it; and (iv) if all the other points were wrong, the Defendant’s belief was not reasonable. In equally broad terms, the Defendant answered in respect of each publication that (i) he had a source or sources; (ii) his source(s) provided him with the information that he published; (iii) he believed what his sources told him, not least because, in his view, they were well placed to provide him with that information, and he took steps to verify it; and (iv) it was reasonable for him to believe that it was in the public interest to publish what he published. Although this line of questioning was entirely proper, and indeed perhaps unavoidable, I gained very little specific from it, or from the Defendant’s answers, for the reasons concerning demeanour of witnesses which are discussed above.

Nevertheless, there are two findings that I do consider that I am in a position to make. First, at least with regard to those publications which contain specific allegations against the Claimant, for example the first publication and the fourth publication, I consider it more likely than not that the Defendant did indeed have a source or sources. Second, however, I am not persuaded on the balance of probabilities in respect of any of the publications that the information that any source(s) provided to him supported the specific allegations that he published concerning the Claimant. This is for two main reasons: (i) although I tried my level best to do so, I was not able to determine from observing the Defendant give oral evidence whether his evidence on these points was reliable, as opposed to being the product either of honest but mistaken recollection or of embellishment; and (ii) the Defendant produced no contemporary record of any kind which supported that evidence, or enabled it to be tested. At the end of the day, although I address each publication further below, it seems to me that these findings are probably fatal to the Defendant’s case in reliance on s4.

As the authorities make clear, the burden is on the Defendant to prove that he believed that publication of each of the statements in question was in the public interest, and if he fails to do that his defence under s4 will fail. If the Defendant is unable to satisfy me that his source(s) provided him with information sufficient to support the allegations that he made against the Claimant, then in my judgment the Defendant cannot discharge that burden.

One criticism which Mr Lemer made of the Defendant was to the effect that he consistently elided or transmogrified information or allegations concerning the state of affairs in Pakistan, including the activities of the ISI, with accusations concerning the Claimant personally. In the absence of any documents enabling that criticism to be tested by comparing, in relation to any of the publications, (i) what the Defendant knew or was told with (ii) what the Defendant published concerning the Claimant, attention focussed on aspects of the evidence where it was possible to compare (i) a source of information and (ii) the Defendant’s take on that information, and it is that topic that I now turn to address. Although Mr Lemer relied on several examples, I propose to refer to only three of them.