MORE than a year ago, British newspaper Mail on Sunday published an article alleging that Shehbaz Sharif had stolen and laundered the UK government aid money while he was chief minister of Punjab. Now, it will have to prove its assertions with substantial evidence in court — or risk losing the case.

While defamation lawsuits are hardly an uncommon occurrence in the UK, particularly for this publisher, in Pakistan the case is being seen as a decisive one that will determine the guilt or innocence of Shehbaz Sharif, who is currently in custody and facing a NAB corruption reference.

The story was used to politically damage Mr Sharif, as senior PTI officials said it confirmed their beliefs about his alleged corruption. “British newspapers do not publish anything until they have triple checked. Unlike in other places they fear being sued. The Sharifs won’t sue daily mail because they know they will lose and the penalties would be in millions of pounds,” Shafqat Mahmood had tweeted when it came out in 2019.

Contrary to this assertion, Mr Sharif did file a defamation claim against the “grotesque allegation” in January 2020, claiming a retraction, damages and an apology.

A year after the claim, this week Justice Matthew Nicklin at a preliminary hearing heard the arguments of both sides to determine the meaning of the words in the article. This ‘meaning hearing’ is a relatively new phenomenon in English courts which is done to save time and costs for both parties prior to the trial. At this stage, the judge determines how the defamatory words would be understood by an “ordinary reasonable reader”.

Outcome will either exonerate Shehbaz or give the govt more political ammunition

In this particular case, the judge ruled that the article meant that Mr Sharif is guilty of some very specific crimes. The publication now has the uphill task of proving these crimes to be substantially true.

Although the meaning hearing is by no means a conclusive decision on the defamation claim itself, it is a critical step in the case as it lays the framework for the defence that can be used by the publication. To sue the Mail on Sunday successfully for defamation, Mr Sharif’s lawyers will need to prove that first the article is identifiably about him; second, that the article means he is guilty of stealing tens of millions from DFID and laundering it to the UK; third, that the article was published by Associated Papers Limited and lastly that its publication caused or is likely to harm the reputation of Mr Sharif – none of which will be difficult to prove.

The Mail on Sunday, however, can use the defence of truth to defend its publication of the defamatory statement. According to the current law and as established in the case of Chase v News Group Newspapers Ltd, “the defendant does not have to prove that every word he or she published was true but has to establish the “essential” or “substantial” truth of the sting of the libel”.

Unfortunately for the publication, Justice Nicklin held that the allegations made about Mr Sharif are clear, and there is insufficient evidence to lead an ordinary reader to think otherwise about his guilt.

The publication now has to prove that it is substantially true that, as it alleged, Mr Sharif was party to and the principal beneficiary of money laundering to the extent of tens of millions of pounds which represented his proceeds of embezzlements while he was the chief minister — and that the public money included funds from a DFID grant payment.

British law also says that it is no defence to an action for defamation for the defendant to prove that he or she was only repeating what someone else had said — known as the “repetition rule”.

This makes the publication’s challenge more complicated, as it will have to provide evidence to substantiate its claims.

According to accountability adviser Shahzad Akbar, proving this will not be a difficult task. “Everything can be substantiated. The standard of proof in this case is higher than a civil case and lower than criminal,” he said to Dawn.

Mr Akbar added that, in the reference filed against Mr Sharif, there is ample evidence in the form of “TTs, cheques, on the record confessions”.

But interestingly, Justice Nicklin said that even if Mr Sharif is convicted in Pakistan, that conviction in itself does not amount to substantial evidence that can be used in a successful defence of truth.

This means that, if the case goes to trial in the UK, regardless of the outcome in Pakistan and what officials here charge Mr Sharif with, the UK trial court will form its own conclusions about how compelling the evidence is as regards the corruption specified in the article.

The coming days promise to be interesting, as the outcome will either exonerate Mr Sharif and hurt the government’s accountability narrative, or give them more political ammunition.

Published in Dawn, February 7th, 2021