Ex-spymaster accused of rigging Pakistan election wins UK libel case

Background

The claimant, Rashid Naseer, was a former brigadier in the Pakistan army, who, at the relevant time, was a sector commander and head of the intelligence commands of the Pakistan army’s Inter-Services Intelligence (ISI) in the Punjab, and lives in Pakistan.

The defendant, Adil Farooq Raja, was a former major in the Pakistan Army, who, after taking voluntary retirement from the Pakistan army, became a journalist and lives in England.

The claimant brought a libel claim arising from the defendant’s publication of material on Twitter, Facebook and YouTube in June 2022. At that time, elections were taking place in the Punjab and other areas. A key theme of the publications concerned allegations of actual or attempted manipulation of the elections, in which the claimant was alleged to have been involved.

The claim was brought in England on the basis that the claimant had a reputation in the jurisdiction, and that there was substantial publication of all the words complained of within the jurisdiction, which, it was pleaded, caused him serious harm.

Richard Spearman KC summarised the context of the words complained of briefly. In the 2018 Pakistan general election, Imran Khan’s Pakistan Tehreek-e-Insaf party (PTI) won the most votes, but did not secure a majority, and so formed a coalition with other parties. The opposition parties, the Pakistan Muslim League N (PMLN), the Pakistan People’s Party (PPP) and others combined to form the Pakistan Democratic Movement (PDM).

In 2022, Khan’s government was ousted, and he was removed from office. There were allegations that the 2018 elections were rigged, and the regime change triggered by Khan’s ousting triggered mass protests. In July 2022, by-elections were held in Punjab and elsewhere, and the PTI won by a substantial majority. A coalition government was formed by parties opposed to the PTI. Shehbaz Sharif of the PMLN became Prime Minister, and Asif Ali Zardari became President of the Pakistan Peoples Party Parliamentarians (PPPP).

Meaning

The claimant complained of ten publications, nine of which were found to be defamatory of him.

The judge held that the natural and ordinary meaning of the statements in the publications complained of included that:

• The reasons why the elections were not proceeding as they should was because the claimant had taken complete control of the Lahore High Court.
• The claimant had allegedly met with Asif Ali Zardari to discuss election manipulation.
• The claimant was a disgrace in the ISI and the People’s Army.
• The claimant: (a) set up an election cell in the sector headquarters in Lahore; (b) was part of a contrived process set up by military and intelligence officers to rig elections in Pakistan; (c) abused his position, using huge unaccounted funds to ensure victory of PDM and PMNL and manipulating elections in Pakistan; (d) would abuse his position and power to use the Police and Dolphin Force to harass PTI supporters during the PTI election campaign; and (e) sinned, destroying his chances of a promised life in the hereafter just to serve one person.
• The claimant caused the police to do his bidding by making a baseless allegation of bribery against the defendant.
• The claimant was directly involved in political interference.
• The claimant attempted to defame the defendant and to prevent him from receiving his identity card and passport, and that was how the claimant, a fraudster, operated.
• The claimant instructed a fake case to be registered against the defendant, whose brother-in-law was arrested.
• The claimant had become a billionaire from his prominent role in regime change and corrupt practices.

Serious harm

The judge noted that all of the words complained of had a seriously defamatory meaning, and that the extent of each publication was considerable. The defendant had 319,000 Twitter followers, 104,000 YouTube subscribers and 89,000 Facebook followers, although the re-amended defence claimed even higher figures.

While the claimant accepted that only a proportion of those figures related to publication within the jurisdiction, the judge held that, taking the publications’ engagement figures as a whole, and on the basis that those can typically represent a small fraction of a very substantial number of viewers of readers, the words complained of caused serious harm to the claimant’s reputation, without the need to call evidence that such harm was occasioned to him.

Counsel for the defendant submitted that publication was unlikely to have changed anyone’s mind on the claimant’s reputation, but that was not supported by the facts in the judge’s view. For example, the claimant gave evidence that, before the publications, he had not been the subject of public criticism or even publicly identified as an officer in the ISI. Further, the judge applied Warby LJ’s remarks in Banks v Cadwalladr,^[2] in that a serious allegation of specific wrongdoing can cause harm, even if the claimant is disliked for some other reason.

Public interest

The defendant’s defence of truth was withdrawn during the trial, and so the judge was asked to consider only the defence of public interest under section 4 of the Defamation Act 2013.

The judge set out three issues to be addressed (following Economou v de Frietas):^[3]

• Was the statement complained of, or did it form part of, a statement of public interest?
• If so, did the defendant believe that publishing it was in the public interest?
• If so, was that belief reasonable?

The first issue was not disputed. The second issue, the judge noted, concerned the defendant’s state of mind at the time of publication, and his need to prove that he believed that publication was in the public interest. The importance of contemporary documents for the second and third issues was also noted.

The defendant’s pleaded case was that he was provided information by reliable sources from within the ISI, military intelligence and many individuals that he could not name because their lives, and the lives of their families, would be at risk should they be named, and so he had promised not to name them.

The judge noted a complete lack of contemporary documents evidencing either what the defendant was told by his sources, or any steps taken to verify them, and the defendant gave no explanation for that in written evidence. The gist of the defendant’s oral evidence was that all material input from his sources was given electronically or over the telephone, possibly via intermediaries, and that contemporary electronic data were deleted. The defendant also referred to a notebook which had not been disclosed, and which he later clarified contained nothing material to the issues in the case.

While the judge noted that a journalist’s refusal to identify a source should not be held against them, that did not mean that the lack of contemporary written records should be discarded. So the judge concluded that the combined effect of the lack of any contemporary record about the nature of the source material or the absence of attempts to verify sources left the judge in great difficulty in assessing the Reynolds factors three to five, namely: the source of the information (some informants having no direct knowledge of the events, some having their own “axes to grind”); the steps taken to verify the information; and status of the information.^[4]

The judge noted one particular example for the second publication. The defendant’s pleaded case on sources was “reliable sources within the ISI”, and his pleaded case on “every effort to verify” was one of cross-verification with military and political sources. Yet the defendant’s witness statement contained no evidence for sources of the second publication, nor of steps taken to verify those. So the judge held that there was no contemporary material which assisted the court in assessing the defendant’s thought processes at the time of publication of any of the publications complained of.

The tenor of the defendant’s evidence was not that he believed the specific allegations against the claimant, but that he was instead commenting on the position in Pakistan more generally. That led the judge to discuss meaning. For the purposes of section 4, where a journalist intended meaning that is less defamatory than the single, ordinary meaning of the publication, the journalist’s reasonable belief falls to be assessed by reference to the less damaging meaning – unless the natural and ordinary meaning is one obvious possible meaning, which was held to be the case for all or many of the nine publications.

The judge also considered the other Reynolds factors, determining that those weighed heavily against the defendant, specifically the fact that numerous serious allegations were made not only as statements of fact, but also without any attempt to seek comment from the claimant. That weighed heavily against a conclusion that the defendant’s subjective belief was a reasonable one.

Accordingly, while it was more likely than not that some of the publications making specific allegations against the claimant came from a source, the judge was not persuaded, on the balance of probabilities, that the information provided by any sources supported the specific allegations that the defendant published. The judge gave two reasons: (a) despite trying his best to do so, he could not determine whether the defendant’s oral evidence was reliable; and (b) the defendant produced no contemporary record that supported his evidence or enabled it to be tested.

The public-interest defence therefore failed, and the claimant had successfully made out his claim.

Damages and other remedies

The claim form limited damages to £50,000. Counsel for the claimant submitted that he was entitled to damages of at least that amount and drew the court’s attention to analogous awards exceeding the claimed sum. While the judge agreed with the relevance of counsel’s factors, and that an appropriate award would be in excess of £50,000 in light of all the factors, the claim form limited the claim to £50,000, and so that sum was awarded.

Additionally, the claimant was entitled to an injunction restraining repetition of the same or similar libels. The defendant was also ordered to publish a summary of the judgment.

Alleged SLAPP

The defendant contended that the claim was, in reality, brought or at least funded by the ISI as a Strategic Litigation Against Public Participation (SLAPP). The defendant was required, by an order of the judge, should he wish, to issue any application for the claim to be struck out as an abuse of process, but he did not do so. Counsel for the defendant later advanced contentions in the re-amended defence that the claim was liable to be dismissed on SLAPP grounds. Further, the defendant’s counsel at trial contended in his skeleton argument that it was a SLAPP and “not a genuine attempt” by the claimant to restore his reputation, and that the claim was “an effort by the Pakistan Military authorities to suppress dissent and criticism”. Yet no reference to a SLAPP was made in the defendant’s counsel’s closing submissions.

In any event, because the defendant made no application under the order, this was not an issue that fell to be determined.

Comment

In his judgment, Richard Spearman KC undertook a forensic analysis of the defendant’s witness evidence, rigorously testing the defendant’s public-interest defence. The judgment illustrates the importance of obtaining and preserving contemporary evidence of a journalist’s investigation for any attempt to rely on a public-interest defence under section 4. 

This case is also notable for the defendant’s abortive attempt to submit that the claim was a SLAPP, while not availing himself of the chance to make an application on that basis.

Finally, although the claimant had made out a case for damages, the judgment also highlights the pitfalls of limiting a claimant’s expectation of damages in a claim form.

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Article written for Entertainment Law Review.