The BBC has successfully defended a libel claim brought by the Chief Imam of Lewisham Islamic Centre in relation to comments made by Andrew Neill during a live interview in November 2013. In Shakeel Begg v BBC ( EWHC 2688 (QB)), Haddon-Cave J held that allegations that the claimant is an extremist speaker who has promoted jihad are substantially true.
On 3 November 2013 the Sunday Politics programme included a feature on whether mosques were doing enough to counter extremism. During a live interview with a representative of the Muslim Council of Britain, the presenter (Andrew Neill) made the following remarks:
“The East London Mosque, which you personally and the MCB closely associated with, it’s also the venue for a number of extremist speakers and speakers who espouse extremist positions. This year Shakeel Begg, he spoke there and hailed jihad as “the greatest of deeds”. In 2009 the mosque hosted a video presentation by somebody described by US security as an Al-Quaeda supporter. You had another speaker there who in the past had described Christians and Jews as “filth”. You’ve had a jihadist supporter of the Taliban there. Why do you do nothing to stop extremism, extremists like that, at this mosque with which you’re associated with?”
Shakeel Begg raised a complaint about these remarks through the BBC’s complaints process. Following the dismissal of this complaint, Mr Begg issued libel proceedings against the BBC in October 2014. He contended that Mr Neill’s remarks were defamatory of him on the basis that they meant
(1) He is “a member of a rogue’s gallery of extremists who actively encourage the hatred of, violence towards and murder of non-Muslims.” and
(2) He “promotes and encourages religious violence by telling Muslims that violence in support of Islam would constitute a man’s greatest deed.”
While disputing these meanings, the BBC accepted that the words complained of were prima facie defamatory of the claimant but it raised a justification defence (this is a pre-2013 Act case) relying on the claimant’s previous statements to assert the substantial truth of Andrew Neill’s remarks. The nine matters relied on by the defendant dated to 2006-2011 and included speeches delivered at a university, in a mosque, outside the US embassy and outside Belmarsh prison, as well as material posted online.
For his part, the claimant put forward a positive case challenging the suggestion that he is/was an extremist, focussing on his standing in the community, his interfaith work and work with the police.
Both parties relied on in-depth expert evidence from scholars specialising in Islamic studies/law.
By way of a judgment running to 92 pages (a press summary can be found here), which involved the judge reading the entire Qur’an, Haddon-Cave J upheld the BBC’s justification defence and dismissed the claim.
Principles on establishing the meaning of statements for the purposes of a justification defence
Because the BBC’s justification defence turned on the correct interpretation of previous statements by the claimant, the judge had to consider the principles applicable to establishing the meaning of such pronouncements. In the absence of case law on this point, Haddon-Cave J used the law on the meaning of defamatory statements as a starting point. He set out the following principles:
- The single meaning rule doesn’t apply. The Court need not even determine a range of reasonable meanings in respect to disputed passages.
- The Court’s task is to “decide whether a section of the audience would reasonably take the words spoken to convey a particular message” and if the Court were to conclude that at least a section of the audience would reasonably take the Claimant’s words to carry a particular message, that would be sufficient to support a finding that his words conveyed that message.
- An modified version of the principles set out in Jeynes v News Magazines  EWCA Civ 130, on establishing the meaning of words alleged to be defamatory, applies.
Meaning of the words complained of
The judge held that the words complained of meant:
(1) The Claimant is an extremist Islamic speaker who espouses extremist Islamic positions.
(2) The Claimant had recently promoted and encouraged religious violence by telling Muslims that violence in support of Islam would constitute a man’s greatest deed.
Defining extreme Islam and extreme Islamic positions
In order to assess the BBC’s justification defence, the judge formulated, in part on the basis of expert evidence, a detailed definition of ‘extreme Islam’ and ‘extremist Islamic positions.’ He also considered the meaning of jihad and associated concepts.
Observing that “extremist Islamic positions can be seen in contra-distinction to ‘moderate’ or ‘mainstream’ Islamic positions,” the judge adopted the following definition of ‘moderate Islam:”
“[T]hose ideas, doctrines and worldviews consensually agreed by Sunni and Shia’ Islamic Law scholars, mainstream Salafi scholars and Muslims, generally to the essential doctrines, teachings and spirit of Islam, according to Qur’an and Sunna, applied in a way as to be suitable for the context of contemporary Britain.”
The judge regarded the following ‘positions’ to be extremist:
- A “Manichean” world view, dividing the world strictly into ‘Us’ versus ‘Them’: those who are blessed or saved (e. the “right kind” of Muslim) on the one hand and those who are to be damned for eternity (i.e. the “wrong kind” of Muslim and everyone else) on the other.
- The reduction of jihad (striving in God’s cause) to qital, which is armed combat.
- The ignoring or flouting of the conditions (as set out Islamic doctrine) for the declaration of armed jihad (qital). Terrorist insurgency, ‘leaderless’ jihadist attacks by groups or individuals against civilians, or the waging of aggressive war against another country or people, cannot properly constitute lawful Encouraging the same is to be regarded as extremist.
- The ignoring or flouting of the strict regulations governing the conduct of armed
- Advocating armed fighting in defence of Islam (qital) as a universal individual religious obligation (as opposed to a collective one).
- Any interpretation of Shari’a that requires breaking the ‘law of the land.’
- The classification of all non-Muslims as unbelievers (kuffar).
- The doctrine that the precepts of the Muslim faith negate and supersede all natural ties such as family, kinship or nation.
- Citing with approval the fatwa (legal opinions) of extremist Islamic scholars.
- Any teaching which, expressly or implicitly, encourages Muslims to engage in or support terrorism or violence in the name of Allah.
These positions are the terms of reference according to which the judge considered the meanings and interpretation of each of Mr Begg’s nine previous statements relied on by the BBC in regard to the extremism imputation.
Haddon-Cave J conducted what he called a detailed syntactical and theological analysis of each statement on the basis of expert evidence and evidence given by the claimant. He concluded that many of Mr Begg’s previous statements contain evidence of his espousing extremist Islamic positions and promoting or encouraging religious violence. The following were held to amount to extremist Islamic positions:
- Accusing a moderate Muslim scholar of “signing a deal with the devil” and betraying “his covenant with Allah” for giving a speech to the counter-terrorism police about how to use moderate Islamic scholars to prevent terrorism.
- Labelling UK counter-terrorism authorities as “the devil,” “brutal, cunning and oppressive” and “the enemies of Islam,” displaying antagonism towards them and Muslims co-operating with them.
- Conflating the meaning of jihad with armed combat (qital) and failing to articulate the Qur’anic conditions and regulations for conducting qital.
- Telling an audience that fighting is a personal religious duty and not confining this to defensive fighting.
- Endorsing, adopting and embellishing the extremist views of Sheikh bin Baz (a Saudi cleric) including citing his fatwas with approval.
- Accusing the American government of “tyranny,” “oppression” and “terror” against the Muslim people and adopting a Manichean worldview by referring to collaborators and infidels.
- Praising jihadis who have travelled to conflict zones and engaged in armed jihad.
- Expressing unqualified support for the Belmarsh Muslim prisoners and their crimes.
- Giving credence to “violent 20th century Islamic ideologues” by bracketing them with the early prophets and suggesting that persons imprisoned at (and in some cases released from) from Guantanamo Bay have inherited their good deeds.
Regarding the second meaning, the judge held that in several of the speeches relied on by the BBC the claimant had promoted and/or encouraged religious violence including armed jihad. The substantial truth of this allegation was not affected by the BBC having inaccurately stated that the claimant made such a statement at East London Mosque.
The claimant’s positive case was held not to outweigh these previous statements. While not doubting the high regard in which the claimant is held in the community, Haddon-Cave J labelled Mr Begg a “Jekyll and Hyde character” who presents one face to the local interfaith community and another ideologically extreme and intolerant face to receptive audiences.
The cornerstone of the BBC’s justification defence was a speech given by the claimant in 2009 and the most recent relevant speech was in August 2011. The judge rejected an argument that the age of these remarks precluded the defendant from relying upon them to defend as substantially true a present tense accusation of extremism and the reference to the claimant’s ‘recent’ promotion and encouragement of jihad. Haddon-Cave J found that the claimant had not disavowed extreme Islam (or his previous statements) by the time of the November 2013 broadcast and 2009 was sufficiently recent given that the relevant speech remained available online.
This is a detailed decision grappling with complex questions of the meanings of extreme Islam and extremist positions. Haddon-Cave J was faced with the formidable task of formulating and applying definitions of notions which are arguably statements of opinion and/or inherently relative concepts. This necessitated detailed consideration of Islamic doctrine, the justiciability of which some may dispute. However, such arguments would not appear to have been raised and the Supreme Court made it clear in Shergill v Khaira  UKSC 33 (at ) that the courts should engage with questions of disputed doctrine if it is necessary in determining civil claims. This was necessary in this case and Haddon-Cave J defined extremism broadly (in contradistinction to a definition of a moderate Islam) setting out an expansive lexicon of extremist positions.
Begg v BBC is notable primarily for Haddon-Cave J’s formulation and application of legal principles on establishing the meaning(s) of a claimant’s previous statements that are relied upon by a defendant running a truth defence. Surprisingly, there was no previous case law dealing directly with this point. The judge indicated that the critical issue is whether a section of the audience would reasonably take the words spoken to convey a particular message (or meaning). This raises questions about the identity of the relevant audience and how small the relevant section of that audience may be. The parameters of this assessment seem likely to be the subject of further litigation.
While the judge used the Jeynes principles (on the determination of words of complained in libel proceedings) as a starting point, there are obvious limits to their application in this context. Notably, as this judgment demonstrates, a far more elaborate analysis may be necessary when considering the meanings of statements relied upon to found a truth defence.
This judgment also raises interesting questions about the reliance by defendants on historic remarks in support of a truth defence to a present tense allegation. Clearly there is a limit to how far back in a claimant’s history a defendant can go when seeking to prove the substantial truth of such statements. The judge attached importance to the question of whether there was sufficient evidence that the claimant had changed. This raises a query as to whether it is for a claimant to demonstrate that s/he has changed or departed from previous views or positions, or whether demonstrating the absence of such changes is part of a defendant’s burden of establishing substantial truth.
Haddon-Cave J’s decision suggests that when considering whether a claimant’s ‘historic’ remarks may found a successful truth defence, a court is likely to have regards to whether: (a) the material remains online, and (b) the claimant has publicly disavowed the comments. While the former seems reasonable in circumstances in which a claimant is in a position to take down past statements on this of his/her changing views, this raises difficulties where a person cannot expunge past statements from the internet.
Aidan Wills is a barrister at Matrix chambers specialising in media and information law, public law and employment law.