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

In accordance with s1 of the Defamation Act 2013 (“A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”), serious harm is a threshold requirement for a claim in defamation. As Lord Sumption explained in Lachaux v Independent Print Ltd [2020] AC 612 at [14] and [21]:

“… section 1 necessarily means that a statement which would previously have been regarded as defamatory, because of its inherent tendency to cause some harm to reputation, is not to be so regarded unless it “has caused or is likely to cause” harm which is “serious”. The reference to a situation where the statement “has caused” serious harm is to the consequences of the publication, and not the publication itself. It points to some historic harm, which is shown to have actually occurred. This is a proposition of fact which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated. The same must be true of the reference to harm which is “likely” to be caused. In this context, the phrase naturally refers to probable future harm.

… [the claimant] must demonstrate as a fact that the harm caused by the publications complained of was serious … (or, I would add, likely to be serious)”.

Further: (i) the assessment of harm of a defamatory statement in not simply “a numbers game” (see Mardas v New York Times Co [2009] EMLR 8, Eady J at [15]); (ii) indeed “Reported cases have shown that very serious harm to a reputation can be caused by the publication of a defamatory statement to one person” (see Sobrinho v Impresa Publishing SA [2016] EMLR 12, Dingemans J at [47]); (iii) “Depending on the circumstances of the case, the claimant may be able to satisfy section 1 without calling any evidence, by relying on the inferences of serious harm to reputation properly to be drawn from the level of the defamatory meaning of the words and the nature and extent of their publication” (see Doyle v Smith [2019] EMLR 15, Warby J at [117]); and (iv) decided cases recognise the “grapevine effect” whereby the defamatory imputations complained of percolate beyond the original publishees, adding to the harm arising from publication.

In the present case, all of the words complained of plainly have a seriously defamatory meaning, and their inherent tendency to cause harm to reputation is equally plainly great.

In addition, it is clear that the extent of publication was, in each instance, considerable. It is common ground on the statements of case that (i) the Defendant’s Twitter account has 319,000 followers; (ii) the Defendant’s YouTube channel has over 104,000 subscribers; and (iii) the Defendant’s Facebook profile is (or was prior to its termination on 17 May 2024) followed by almost 89,000 persons (see paragraphs 5-7 of the Amended Particulars of Claim, paragraphs 6-7 of the Re-Amended Defence). In fact, paragraph 2k of the Re-Amended Defence claims higher figures, namely around 800,000 Twitter followers, around 451,000 YouTube subscribers, and around 175,000 Facebook followers. The reasons for this disparity were not bottomed out during the course of the trial. It is possible that the differences are explained because the figures relate to different dates. In any event, neither the Defendant’s pleaded case nor his evidence detailed contrasting figures as at June 2022.

These figures concern international dissemination, and the Claimant accepted that only a proportion of these figures would have related to publication within this jurisdiction.

In this regard, the Claimant relied on the documented statistics relating to the Defendant’s YouTube audience, which showed that 6.7% of that audience were in the United Kingdom. Mr Lemer submitted that this was a reasonable guide to the distribution of the Defendant’s audiences generally. On this basis, on the Claimant’s figures the Defendant’s Twitter followers in this jurisdiction would have numbered approximately 21,373 (i.e. 319,000 x .067), and on the Defendant’s figures they would have numbered approximately 53,600 (i.e. 800,000 x.067). The like figures for YouTube subscribers would be 6,968 or 30,217 respectively. Finally, the like figures for Facebook followers would be 5,896 or 11,725.

In addition, the Amended Particulars of Claim pleads that all the publications complained of were the subject of re-tweets, quotes, likes, and viewings as follows:

Mr Harding pointed out that these figures were not supported by any evidence in the Claimant’s trial witness statement. I do not consider that there is anything in this point, however, because all these figures are admitted in the Re-Amended Defence. They are an imperfect guide to the number of persons who read the words complained of in each of these publications. On the footing that the total number of those who re-tweet, quote, like, or comment on any particular article or video that is made available on social media is typically a small, if not tiny, fraction of the total audience who read or view the material in question, however, these figures are consonant with a very substantial number of readers or viewers. For example, there are many works available on YouTube that have been viewed or listened to many millions of times, perhaps over the course of many years, and at the same time they have attracted only a few thousand likes or comments. In addition, and in any event, these figures evidence a substantial element of “grapevine” dissemination.

Mr Harding further submitted, and I accept, that the fact that 6.7% of the Defendant’s YouTube audience were in the United Kingdom did not mean that the same percentage of his Twitter and/or Facebook audiences were in the United Kingdom. At the same time, the Defendant put forward no case as to the geographical distribution of his various audiences, other than to plead that his followers in the UK are a “small fraction” of the total of his followers elsewhere. Further, Mr Harding advanced no argument as to the applicable UK percentage for the Twitter and/or Facebook media. Accordingly, as Mr Harding was constrained to accept, the UK percentages for those media might be either higher or lower than the YouTube percentage. Against this background, and in the absence of any evidence or argument to suggest that there is any reason why the Twitter and Facebook audiences should be composed materially differently to the YouTube audience, I consider that, doing the best I can, it is appropriate to accept Mr Lemer’s argument. (If literacy levels among the Pakistani diaspora in the UK were particularly high in comparison to other territories, there might be a case for saying that the percentage of the Defendant’s Twitter and/or Facebook audiences based in the UK is likely to be greater than applies with regard to his YouTube audience, and vice versa. However, no such arguments were advanced.)

In this regard, as all the words complained of were published in Urdu, and on the basis that there is only an actionable publication to persons who understand the language of publication, Mr Harding submitted that the Claimant needed to establish publication to speakers of Urdu within this jurisdiction. In my judgment, there is also nothing in this point. As the Defendant’s posts and videos are all in Urdu, they are only of interest to persons who understand that language (wherever they may be located). The overwhelming inference, therefore, is that all those to whom the words complained of were published did understand Urdu. The only exception that comes to mind is that, conceivably, a non-Urdu speaker might access the publications using a programme or tool to translate the content to another language that they do understand. However, although the point was not argued before me, my provisional view is that this would still involve an actionable publication to them: the intervening act of translation gives rise to no independent publication to them.

Other things being equal, these facts and considerations would be amply sufficient, in my judgment, to justify the inference that publication of words with such an inherent tendency to cause harm to the reputation of the Claimant as is true of words having the meanings of all the words complained of in the present case did indeed cause serious harm to his reputation, without the need to call evidence that such harm was in fact occasioned to him. In this regard, it is to be noted that in Doyle v Smith [2019] EMLR 15, at [121] Warby J said with regard to an article bearing the meaning that the Claimant in that case had been lawfully arrested by the police for serious criminal offences, namely blackmail and sending malicious and menacing communications, and accordingly that there were reasonable grounds to suspect that he had committed those offences, and which had been viewed on 69 occasions, that “Publication on this scale is not trivial or insignificant” and “the inference of serious reputational harm is properly drawn on the basis of these facts”. Even 6.7% of the re-tweet figures would, in most instances, exceed this order of publication.

In the present case, however, there are three particular contentions which were said by Mr Harding to militate against the conclusion that the requisite serious harm is made out.

First, that publication was unlikely to have changed the mind of anyone with regard to the Claimant’s reputation. In its broadest and most simplified form, this submission boils down to saying that those publishees who supported the Defendant’s stance that the ISI is steeped in political manipulation and other wrongdoing will have thought just as badly of the Claimant in any event, and that those who rejected that stance will not have credited the allegations contained in the words complained of or have thought less well of the Claimant.

In my opinion, however, that line of argument faces insuperable difficulties on the facts, for the following principal reasons: (i) It is inherent in the Defendant’s position, and indeed is reflected in the language of the material publications, that not every officer in the ISI is guilty of wrongdoing, and, also, that not all the guilty ones are guilty of equivalent wrongdoing. If the position were otherwise, there would be no “breaking news” (in the language of the fourth publication) to reveal about the role alleged to have been played by the Claimant, and the Claimant would not be in the 1% of the Pakistan Army and the ISI who are “black sheep” (see the third publication) and whose activities are being revealed by “silent soldiers” who “are doing their duty”. (ii) The Claimant gave evidence that, prior to the publications complained of, he had not been the subject of public criticism or opprobrium of any kind, or, if I understood his evidence correctly, even publicly identified as an officer in the ISI. That evidence was not challenged, and was not contradicted by any public documents before the Court (which referred to numerous other prominent Pakistani figures who featured in the evidence, but not to the Claimant). (iii) It is contradicted by the Claimant’s evidence, which on these matters I accept. For example, in his witness statement for trial he stated that “my reputation was critically important especially given the sensitive work I carried out both in Pakistan and with foreign counterparts including in the UK”, and that the material publications tarnished his reputation, made others question him and his work, and were “incredibly embarrassing”. And in his oral evidence he explained that the publications reached three particular categories of people who were important to him: (a) his immediate family, who did not believe the allegations, but felt worried, sad, threatened and fearful; (b) his extended family, some of whom did not believe the allegations but were nevertheless concerned, and some of whom (essentially supporters of Imran Khan) “thought I was involved and thought very badly of me”; and (c) professional colleagues, who had previously held him in great respect, and pressed him to clear his name, but whose concern had the result that his plans to work with them after leaving the ISI were ruined.

Second, that the Claimant’s case lacked consistency, in that: a number of allegations relating to serious harm to reputation that are contained in the Amended Particulars of Claim are not supported by his trial evidence; a number of such allegations that are contained in the trial evidence are not foreshadowed in the Amended Particulars of Claim; and the Claimant’s evidence at trial as summarised in [62] above represented a third articulation of his case on serious harm to reputation. In my judgment, there is force in some of the points made by Mr Harding in this context. Other points, however, seem to me to focus on differences of language, although the thrust of the points being made is the same. At the end of the day, however, I do not consider it necessary to resolve these issues (such as whether the threats that the Claimant says that he has received since the publications complained of emanate from the UK as pleaded, although that source of threat is not repeated in his witness statement; and whether threats made and/or received outside the jurisdiction provide support for a case that the Claimant has suffered serious harm to reputation in this jurisdiction). The evidence summarised in [62] above is sufficient to provide any supplement to or support for the inferential case that may be required.

Third, that even if the Claimant can establish serious harm to his reputation flowing from each of the publications complained of, he has not established the same in this jurisdiction. This is, in substance, a re-iteration of points already considered above. As to the extent of publication in this jurisdiction, this was plainly considerable, extending to significant numbers in relation to each publication (although much more in relation to some, the fourth publication in particular, than others). As to the question of harm in this jurisdiction, the Claimant made clear that some members of his extended family are based in this jurisdiction, as are some of the professional colleagues who learned of the publications and manifested concern about them. I also agree with Mr Lemer that the fact that the Defendant admits that in some publications he tagged the UK Government (among others) “to bring to their attention practices of corruption, abuses of power, and the undermining of the Judiciary and of the democratic process in Pakistan by [among others] the Claimant” (see paragraph 11 of the Amended Particulars of Claim; paragraph 11 of the Amended Defence) – and see, further, the promise in the seventh publication to “take this matter” to a number of institutions in the UK – supports the case that serious harm was occasioned to the reputation of the Claimant within this jurisdiction, and indeed that this was contemplated.

In reaching these conclusions I have had regard to, and have applied, the principles and considerations articulated in the material authorities to which I was referred: Sivananthan v Vasikaran [2023] EMLR 7, Amersi v Leslie & Anor [2023] EWHC 1368, and Banks v Cadwalladr [2023] KB 524.

Among other things, in Banks Warby LJ said at [55]-[56]: “Where a defendant publishes a specific allegation of a seriously damaging kind in circumstances which would ordinarily lead to an inference of serious reputational harm the fact, if it be so, that those to whom that allegation is published are politically opposed to the claimant or dislike him or have a generally low opinion of him for some other reason is not a proper basis on which to reject that inference … judges of the Media and Communications List have consistently, and in my view correctly, rejected arguments to the effect that a serious allegation of specific wrongdoing does not cause serious harm if the audience dislikes the claimant for some other reason”. This supports the Claimant’s case on serious harm, and the conclusion that the first of Mr Harding’s contentions discussed above is unsustainable in any event.

On the other hand, again among many other things, Warby LJ made clear in Banks at [46] that the true meaning and effect of s1 of the Defamation Act 2013 is that “A statement is defamatory only if and to the extent that its publication causes serious harm to reputation or is likely to do so, and not otherwise”.

This raises the prospect that, if a defendant publishes a series of defamatory allegations to a particular audience, it becomes increasingly unlikely as time moves on that serious harm to reputation will be occasioned by the impact on members of that audience who re-encounter those allegations in the course of reading or viewing that series. Accordingly, it is possible that one or more earlier publications of a defamatory allegation may satisfy the serious harm requirement, and that one or more later publications may not. In the present case, however, it is neither asserted nor established that the statements complained of were published to identical audiences, and nor do those statements make identical allegations.

Further, the number of publishees was in each instance sufficiently large that even if there may have been a substantial overlap between successive audiences, and even if (which was not argued before me) one or more of the later publications did not add materially to the defamatory imputations already conveyed by the series, an inference can properly be drawn that publication of each of the statements complained of caused serious harm to the reputation of the Claimant in this jurisdiction, applying the reasoning set out above.

For all these reasons, I consider that the Claimant succeeds on the issue of serious harm.

Applicable law

Section 4 of the Defamation Act 2013 (“s4”) provides (as far as material):