In the case of Jneid v Western Australian Newspapers ([2015] WASC 68) the Western Australia Supreme Court found that the front page of The West Australian newspaper displayed in a glass box, is a separate act of publication for the purposes of maintaining a defamation claim. The court also found it was capable of conveying an imputation without reference to a story in the body of the paper.
Background
Dr Rateb Jneid (pic) president of the Islamic Council of Western Australia, commenced defamation proceedings following publication of an article in The West Australianon May 29, 2014.
He sued over the front page of the newspaper together with an article on page 10.
Justice Kenneth Martin described the front page as comprising large photographs of the plaintiff and his brother Ziad Jneid, with the printed name of each as a backdrop to the headline “GUNS, DRUGS and MONEY – Islamic boss and brothers implicated in organised crime probe.”
The page 10 article, published under the headline “Crime Syndicate Raid – Islamic chief firearms charge”, reported on the police investigation leading to the charging of two of the plaintiff’s brothers with drug offences.
Critically, the article reported Dr Jneid was to face a firearms charge after police raids.
Western Australian Newspapers (WAN) sought to strike out the pleaded imputations but also challenged the plaintiff’s ability to rely on the front page of the newspaper, which was displayed as on its own, in a glass box – with the rest of the newspaper being “physically isolated from the other pages”.
Distinct publication
WAN argued that if the ordinary reasonable reader was not in a position to read the entire publication, the reader would “suspend” judgment until reading the full article or if unable to obtain access to the remainder of the article suspend judgement indefinitely.
WAN relied on the page one pointer, “Gary Adshead: Exclusive page 10” juxtaposed near a picture of the journalist, Adshead, to argue the ordinary reasonable reader would understand the relevant publication extended to what was found on pages one and 10.
His Honour found the front page in isolation was “intelligible without requiring any further reference to extraneous material”.
The page one pointer did not place the reader on notice of a forthcoming antidote to the bane delivered on the front page of the newspaper.
His Honour therefore found the front page was arguably capable of comprising the entire publication from which an ordinary reasonable reader could derive a meaning.
Before leaving this issue Justice Martin raised an evidentiary issue for another day – how the plaintiff proposes to prove the extent of a discrete mode of publication and any damages arising from that.
Imputation of guilt – front page
His Honour was then required to rule on the arguability of the pleaded imputation said to arise from the front page in isolation:
“The plaintiff is a member of an organised crime syndicate that engaged in trafficking drugs.”
WAN sought to invoke the Lewis v Daily Telegraph line of cases, arguing the front page fell within the category of being a “mere report as to the existence of an inquiry, not a guilt” – i.e. a “Chase level one” meaning. (Chase v News Group Newspapers Ltd)
Having earlier observed that cases in the Lewis v Daily Telegraph mould needed to be read in the light of the plurality of the High Court in Favell v Queensland Newspapers, Justice Martin detected the presence of “a significant amount of ‘smoke’,” from the front page.
He found the imputation was reasonably capable of emerging because the reader would arguably reach a conclusion that there is an organised crime syndicate, it trafficks drugs and Dr Jneid is a part of the syndicate.
Imputation of guilt – whole article
His Honour (pic) was also required to rule on the pleaded imputation said to arise from both front page and page 10 article:
“The plaintiff is a member of an organised crime syndicate that engaged in trafficking large quantities of methylamphetamine.”
WAN argued upon reading the page 10 article the ordinary reasonable reader would understand the plaintiff was not part of any syndicate because he had not been charged with a drug-related offence, having being charged with a less serious offence of failing to securely store a fire arm, compared to six other persons referred to in the article who were charged with drug related offences.
Therefore, a reference in the article to a “syndicate” would not have drawn in the plaintiff’s firearms charge.
WAN also argued the ordinary reasonable reader would read the article as somewhat of a “letdown” because it would show the plaintiff had not done anything untoward, aside from failing to secure his firearm.
In rejecting WAN’s argument, Justice Martin reiterated the notion that the ordinary reasonable reader does not interpret written or spoken material in the same fashion as a lawyer:
“But as a matter of common sense, ordinary readers would not limit themselves to evidence admissible in a trial, or use linear chains of reasoning towards inferring guilt.
Common law jurisprudence in defamation contains no reference to a man on the Clapham omnibus sitting next to a barrister from the Outer Temple who reminds the man to keep forever in mind a ‘Golden Rule’ and who provides a running commentary upon what is or is not proper admissible evidence towards the inferring of guilt at a criminal trial.”
His Honour found the imputation arguable taking into account a combination of factors, including the page 10 headline and sub-headline, the reference in the article to the plaintiff having business connections with his two brothers and the reporting of the police raids.
His Honour dismissed the defendant’s application to strike out the claim.
The decision is pending appeal.
Appearances
For the plaintiff: S.M. Davies SC instructed by Lemonis & Tantiprasut Lawyers.
For the defendant: A.V. McCarthy instructed by Lavan Legal.
This post originally appeared in the Gazette of Law and Journalism, Australia’s leading online media law publication.
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