Asia Times Online Clipped by Libel Charge

Asia Times Online, the region’s biggest all-Internet news source, has been hit by a HK$1.3 million libel judgment on behalf of a Dubai-based gold trader and financier, Abdul Razzak Yaqoob and his company, ARY Traders, for a 2006 article alleging the company was involved in money laundering, terrorist financing and drug trafficking.

The article, written by veteran journalist Bertil Lintner, was labeled “written in a tendentious, sensationalist style” that “attempts to condemn ARY and companies within his group through wild accusation and associations. There is little (if any) reliable evidence backing its allegations. Looked on as a whole, the article is defamatory.”

Lintner, a long-time correspondent for the one-time weekly newsmagazine Far Eastern Economic Review and a respected authority on Burma, declined to testify although he submitted substantial evidence in an attempt to support the publication’s case. Although Lintner was named as a defendant, the writ was never served on him, nor did other witnesses appear for the defense, which relied on counsel and written statements.

In the piece, titled “An Underworld Paved with Gold, Lintner wrote that ARY Traders was involved in panoply of illegal activities, including helping to fund the Taliban insurgency in Afghanistan and “used to manage the ill-gotten gains of Abdul Qadeer Khan, the ‘father’ of Pakistan’s nuclear-weapons program.’”

High Court Justice Anselmo Reyes wrote in his judgment, delivered on April 23 and made public last week, that Asia Times Online “appears to me to have been grossly negligent in allowing the article to appear on its website without demanding better quality evidence substantiating the allegations being levied against ARY and the ARY Group. I also do not think that ARY was given a fair opportunity to respond to the article before publication.”

It is unknown whether Asia Times Online, which averages 100,000 to 120,000 unique readers a day, will continue to operate. A spokesman for Asia Times Online expressed confidence that it would continue although there is speculation that it might declare bankruptcy and perhaps be reconstituted as a different company to continue to publish.

Asia Times Online’s status as a Hong Kong company and its ownership are nebulous. Although it is registered in the territory, actually its editorial offices are in Thailand. It is widely assumed to be owned by Sondhi Limthongkul, a Thai tycoon and head of Manager Group, who started the original Asia Times as a newspaper but folded the print edition in 1997. The regional newspaper reportedly was losing US$1 million a month when it went under.

However, in an email to the staff in October 2007 that was made available to Asia Sentinel by a former ATOL employee, editor Allen Quicke wrote that “this is the true story of our corporate setup, for anyone who wants to know. Sondhi, Manager, etc. have nothing to do with ATOL, for all intents and purposes.

“The website Asia Times Online (atimes.com) is owned by Hong-Kong registered company Asia Times Online (Hong Kong) Ltd. The director is Yvonne Yu. Asia Times Online (Hong Kong) Ltd is owned by Asia Times Online (Holdings) Ltd, a British Virgin Islands registered company. The shareholder/s of that company are not disclosed. There is nothing unusual or untoward in this kind of set-up, it's completely legal and acceptable. For your own information, the sole shareholder of Asia Times Online (Holdings) Ltd is NOT Sondhi. This is true.”

Sondhi himself is currently free on appeal against a jail sentence in Thailand for allegedly libeling an associate of ousted former Prime Minister Thaksin Shinawatra during a political rally against Thaksin.

The case also is notable because for better or worse Justice Reyes answers the question of whether an Internet publication can be sued in any particular jurisdiction. Asia Times Online lawyers argued that, although the publication is registered as a Hong Kong company, there was no evidence that the libel was published, in the sense of being downloaded in Hong Kong, and that thus asked that the case be dismissed outright.

Justice Reyes wrote that “Here a party (the plaintiffs) has sued a Hong Kong company (ATOL) as of right in Hong Kong. There is no need to obtain leave for service outside of the jurisdiction and therefore no need to establish that the defamation took place here.

Asia Times Online’s lawyer, Leo Remedios of Yuen & Partner, “relied on a number of cases suggesting that an article in the internet is published where it is accessed and downloaded. If so, according to Mr. Remedios, there being no oral or documentary evidence from the Plaintiffs expressly stating that the Article was downloaded in Hong Kong, there can have been no publication in Hong Kong and the claim should be rejected.”

Reyes wrote that “I am not persuaded by the argument. The majority of cases relied upon by Mr. Remedios concern the question whether defamation took place in some home jurisdiction for the purpose of service abroad. Thus, for example, in the Hong Kong situation, assume it is proposed to sue someone outside the jurisdiction for …defamation. In such case, it may be necessary in order to obtain leave for service of a writ outside Hong Kong for a plaintiff to show that the defamation took place here.”

Remedios argued that in the absence of proof of publication in Hong Kong, a party cannot sue in the territory for the publication of a libel elsewhere. But, Reyes wrote, there appeared to be plenty of evidence that indeed the piece had been downloaded in Hong Kong and that ARY had standing to sue. He awarded Abdul Razzak Yaqoob HK$1 million in damages, plus HK$150,000 each to ARY Traders and Digital UK, a company affiliated with the ARY group.