Judgment Approved by the court for handing down.
Ismaik v Fadaat Media
engine results. Where public image matters, and options exist for maximising the
positive and minimising the negative, those options can be expected to be taken.
Views may differ as to how far that is an admirable, effective and/or prudent practice.
But to learn that someone with a public profile has used such existing facilities to
burnish and advertise their positive credentials online, and minimise access to
disobliging material of any sort, is unsurprising and carries no implication of
dishonesty.
40.
Nor am I persuaded that, where the disobliging material involves a history of
conviction and prosecution, that alters the position materially, or attracts some
additional quality of dishonesty or deceptiveness to the natural and ordinary meaning.
People may have a variety of things in their past they would rather not draw public
attention to, and many reasons for not doing so. Failing to advertise one’s past
engagement with criminal law enforcement, and taking steps to minimise its
obviousness online, is not the same as lying about it. There are certainly specific
contexts where disclosure is expected and reticence would positively misleading, but
nothing beyond the general is engaged here.
41.
In these circumstances, my conclusion is that the natural and ordinary meaning of this
allegation in context is that:
Mr Ismaik has used the options provided by the search engine Google to
maximise the possibilities that online search results will be reputationally
advantageous to him, and minimise the likelihood that it will reveal he has
been subject to prosecutions and adverse court rulings.
This is a factual allegation about something he is said to have done.
42.
This allegation is not couched in flattering, or even neutral, terms; it conveys that the
image-reshaping activity is embarrassing and invites judgment as such. But I am not
persuaded it is an allegation that Mr Ismaik has done something gravely contrary to
shared societal norms, morals and values, or that people would tend to think seriously
the worse of him as a result of learning this, over and above what has already been
said about him having been in fact the subject of those prosecutions and rulings.
43.
In my view, a person who has been subject to conviction, adverse court rulings or
prosecution would not necessarily be expected to be up front about it online, or
deserving of grave censure, over and above the censure attracted by the underlying
conduct, for not having been so. General reticence about such matters does not
violate recognised norms of honesty and integrity. (There is even arguably a growing
consensus around positive entitlement to be ‘forgotten’ online, in some respects
legally as well as morally.) So I am not persuaded this meaning has a defamatory
tendency of its own, over and above the allegations of the underlying conduct itself.
(v)
The ‘authorship’ allegations
(a)
First impressions
44.
The pivot on which the article turns is in the next sentence: however ‘understandable’
attempts at image control may be, what was by contrast ‘incomprehensible’ was Mr
Ismaik’s association with the Foreign Policy article. The journalist is disgusted by