18 March 2008
Port Louis — Judge Saheda Peeroo dismissed, on 7th March 2008, the case of former PS Roy Dookhony v La Sentinelle Ltd and its editor in chief for defamation. Considering the latest attempts to intimidate the press, "l'express" has decided to publish extracts of this judgment that balances "freedom of expression" with "protection of reputation". It advocates responsible journalism based on good faith, public interest and "faits justificatifs".
At the material time and until 23 March 1997, the plaintiff was the permanent secretary at the ministry of Cooperatives. He was posted at the ministry of Civil Service Affairs when he entered the present action for defamation against the first defendant company, owner, printer and publisher of l'express newspaper, and the company's director and editor in chief, the second defendant.
This case relates to the interaction between freedom of expression and protection of reputation, and in particular, a public official's reputation since it was made an issue that the impugned articles had identified the plaintiff as the permanent secretary of the ministry of Cooperatives.
It may be appropriate to refer to the designation of a "public official". According to Brennan J. delivering the majority opinion in the US Supreme Court in Rosenblatt v Baer (1966 383 US 75 at 86), it "applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs". The plaintiff in the Rosenblatt libel case was the manager of a municipal ski resort and he was found to be a public official. A wider definition was adopted following the rationale behind the Court's reasoning in Sulllivan v The New York Times that "debate on public issues should be uninhibited, robust and wide open". This broader concept of public official did not, however, ignore the public interest in safeguarding an individual's reputation from unwarranted criticism - vide Political Libels: A Comparative Study, Ian Loveland,at p 73-74.
The plaintiff complains that between 19th February 1997 and 17th March 1997 the defendants published in l'express a number of unsigned articles against him, which allegedly contained false, malicious and unwarranted accusations, allegations and innuendoes which were grossly insulting to him and/or grossly defamatory of his character, honour and reputation. He bases his complaints on extracts from four press cuttings, dated 19th February 1997, 22nd February 1997, 13th March 1997 and 17th March 1997.
In substance, the impugned articles relate to:
(1) an inquiry ordered by the Registrar of Cooperatives Societies (the Registrar) in respect of a loan of Rs 450,000 alleged to have been contracted by the plaintiff in the name of Oriflor Cooperative Society (Oriflor), which the plaintiff was allegedly managing as president or chairman;
(2) a request for his transfer from the ministry of Cooperatives while the enquiry was on;
(3) a suggestion that an objection to departure be put in against the members of Oriflor including the plaintiff; and
(4) the information that he was allegedly asked to shorten his mission abroad.
According to the plaintiff, the questioned extracts meant and were understood to mean, in essence, that he was not a fit and proper person to be a permanent secretary and/or to hold a senior position of high responsibility in the civil service, that he had misused his position of president of the said society to obtain a loan in the sum of Rs 450,000, which he put to his personal use, that he had done something illegal, fraudulent and was a criminal and was likely to run away from justice.
Plaintiff avers that the writings were false and malicious and were grossly insulting of him and/or grossly defamatory of his honour, character and reputation. He therefore avers that by printing and publishing these materials the defendants have committed a faute and/or acts of gross negligence and/or imprudence and, consequently, they are liable to him in damages, which he estimates at Rs 10 m, together with interests at legal rate from the date of service of the process until final payment.
The defendants deny the construction placed by the plaintiff on those articles and plead that they contained faithful accounts relating to facts and matters of public importance, which they published in good faith and in the performance of their professional duty to inform the public, more particularly their readers, and that they gave a faithful account concerning Oriflor and the subsequent developments in the matter. As regards the basis of the articles they assert that on 8th November 1996, an inquiry into the constitution, working and financial conditions of Oriflor was ordered by the Registrar of Cooperatives under section 56 (1) (b) of the Cooperative Societies Act and that the plaintiff did chair the last committee of that society.
"There is no insult or defamation,
no "fault" or negligence on the part
of the defendants. The author has
been of good faith based on 'faits justifi-catifs',
took the trouble to verify the facts and
gave a balanced account of
what was published."
The defendants further aver that they were not actuated by malice towards the plaintiff, nor did they publish the articles with a view to defame, harm and insult him, pointing out that the columns of the newspaper were always available to the plaintiff for any rectification, clarification or denial of the information contained in those articles which, the defendants maintain, were published bona fide on facts, which were of public knowledge.
Freedom of expression is a fundamental right in our democratic society guaranteed under Sections 3 and 12 of the Co nstitution, which were inspired from the European Convention on Human Rights and Fundamental Freedoms and, in this particular context, from article 10 thereof. That freedom, however, is not absolute as it is subject to exceptions which are justified as being necessary in a democratic society, and is limited to the extent of the provisions made by the law for the protection of reputation. The relevant provisions referred to are extensively set out below to show the similarity of our Constitution and the European Convention with regards to the protection of fundamental rights generally and with particular emphasis on the freedom of expression.
The relevant part of section 3 of the Constitution reads as follows:
"3. Fundamental rights and freedoms of the individual
It is hereby recognised and declared that in Mauritius there have existed and shall continue to exist without discrimination by reason of race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, each and all of the following human rights and fundamental freedoms -
(a) ;
(b) freedom of expression ; and
(c) ,
and the provisions of this Chapter shall effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of those rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest."
Section 12 of the Constitution reads:
"12. Protection of freedom of expression
(1) Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, that is to say, freedom to hold opinions and to receive and impart ideas and information without interference, and freedom from interference with his correspondence.
(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision -
(a) in the interest of defence, public safety, public order, public morality or public health;
(b) for the purpose of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating the technical administration or the technical operation of telephony, telegraphy, post, wireless broadcasting, television, public exhibitions or public entertainments; or
(c) the imposition of restrictions upon public officers, except so far as that provision or, as the case may be, the thing done under its authority is shown not to be reasonably justifiable in a democratic society."
The similarity of the provisions of our Constitution with the European Convention on Human Rights and Fundamental Freedoms can be seen in Article 10:
"1. Everyone has the right to freedom of expression. The right shall include freedom to hold opinions and to receive and impart information and ideas without inteference by public authority and regardless of frontiers. This article shall not prevent states from requiring the licencing of braodcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
The law that existed for the protection of reputation has been preserved by the Consitution. The plaintiff has entered his case under the civil law based on articles 1382 and 1383. A suit in defamation is actionable for "faute" under article 1382 of the Civil Code - "le fait de l'homme ayant causé un préjudice à autrui", as well as under article 1383 - "dommage qu'il a causé par sa négligence ou par imprudence." Where an allegation or imputation or fact which amounts to a "faute" has caused prejudice to someone liable for that "faute" - vide the case of Lesage v Mason (1976 MR 172). It has been constantly held by our Courts that a defamatory statement was always presumed to have been made with malice ("intention de nuire").
However, unlike in our jurisdiction, no particular distinction is made in France "between an allegation or imputation which consists in a statement of fact and one which consists in an inference drawn from, or a comment made upon, facts stated", as observed in the above case by Garrioch, SPJ, as he then was. The blending of French and English principles into our system becomes obvious, more especially in respect of the defence available.
The Court in Lesage v Mason (supra) stated that "the defence of good faith which, as exclusive of liability, is available to the French defendant in all cases and which a defendant before our courts would be entitled to prefer, will include what is known in Mauritian law by the English appelation of fair comment". However, pure reporting may not contain any comment at all.
Upon a review of the law of defamation as applicable in our jurisdiction, the Court went on to say that the English law of libel was not the law of Mauritius but that guidance might be sought from English authorities and case-law on the subject where the principles applicable to any issue involved were the same in the French and English systems.
In Walter v Boodhoo (1981 Mr 131), the Court quoted with approval the principle as succintly summarized in a note by Mimin while commenting the judgment of Cour de Cassation reported in DP 1939.1.77. It reads as follows:
"La bonne foi qui désarme le juge pénal n'est pas différente de l'absence de faute qui, devant le juge civil, justifie le diffamateur."
In that case, the Court further referred to certain other passages from the note by Mimin to point out that, for a defence of good faith to succeed, it is incumbent on the defendant to prove that he was acting in good faith "surgie d'un ensemble de faits justificatifs". It was further observed that the defendant has to plead the "faits justificatifs", which give a foundation to his good faith and consequently negative fault. Vid also Boodhoo v Sun Printing Ltd (1992 SCJ 208) where it was said that "in a case of defamation based on article 1382 it is, first, incumbent upon the plaintiff to establish "faute". But once this is done, it is for the defendant who sets up good faith as a defence that he was acting in good faith 'surgie d'un ensemble de faits justificatifs'".
Good faith as a live issue will therefore arise in this case only if the plaintiffr shows that the offending allegation or imputation of fact is defamatory or that the allegation of fact is untrue and has resulted in prejudice to him, this amounting to a "faute"? The good faith which the defendant has to establish in order to be absolved from liability, based on note Mimin is tersely summarized in note 70 of Dalloz, Nouveau Répertoire Vo. Diffamation:
"70. Le prévenu échappe à toute sanction pénale ou civile s'il établit l'existence de faits justificatifs démontrant sa bonne foi. - Cette bonne foi s'apprécie d'après la légitimité du but poursuivi, la convenance du moyen employé, la prudence et la sincérité de l'agent."
As pointed out by note Mimin, such good faith implies ("suppose"):
(a) la sincérité;
(b) un but légitime;
(c) que l'imputation diffamatoire est proportionnée au but légitime. Outre la légitimité du but, il faut la légitimité du moyen;
(d) la prudence.
"For a defence of good faith to succeed, it is incumbent on the defendant to prove that he was acting in good faith "surgie d'un ensemble de faits justificatifs."
I pause here to point out that the freedom to publish free of unjustifiable restraint is a distinctive feature of article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and of sections 3 and 12 of our Constitution. The distinguishing charateristic is also reflected in section 12 of the Human Rights Act 1998 in England. As stated by the House of Lords in Reynolds v Times Newspaper Ltd (1999 WLR 1010 at p 1023). "To be justified, any curtailment of freedom of expression must be convincingly astablished by a compelling countervailing consideration, and the means employed must be proportionate to the end sought to be achieved."
In that context, I find it relevant to refer to the test of responsible journalism as proposed by Lord Nichols in Reynold v Times Newspaper Ltd (supra). On the assumption that the matter is one of public interest, the said test is applied to pass a defence of qualified privilege, which does not exist as such in our law. The test is, in my view, in line with the French principles proposed by Mimin to evaluate the good faith.
It was further held in Guy Forget v La Presse Mauricienne Ltée & Anor (1958 MR 248) - per the then Ag. C J Osman with those judgment Summons, J. Concurred - that in a civil action the defence of qualified privilege, namely, publication of a defamatory article for the public good, as contemplated by the English law of libel cannot be pleaded as nothing corresponding to that defence appears to exist in French law. However, the Judge went on to say that "even if it were to exist, it would necessarily be dependent on the existence of good faith on the part of the author".
Lord Nicholls gave a list of what might be taken into account in deciding whether the test of responsible journalism was satisfied. The rationale of the test, as stated by Lord Bingham of Comhill in Jameel v. Wall Street Journal Europe ( 2006 3 WLR 642), is that "there is no duty to publish and the public have no interest to read material which the publisher has not taken reasonable steps to verity". Similarly, as observed by Lord Hobhouse of Woodborough in Reynold v. Times Newspaper Ltd (supra) at p. 1059 - "No public interest is served by publishing or communicating misinformation."
Similar principles with regard to the duty to verify are reflected in the conditions proposed by Mimin, more especially with regard to the following.
"La bonne foi suppose la prudence. Cette condition n'a rienh d'insolite, et la même raison qui érige la bonne foi en fait justificatif exceptionnel, veut qu'elle ait une qualité exceptionnelle.
On n'admettra donc pas le moyen tiré de la bonne foi chez le diffamateur qui, "de bonne foi" en tant qu'il a cru dire la vérité, a omis de recourir aux vérifications convenables, de s'instruire sérieusement, d'accorder le zèle de ses recherches à la gravité de ses récits."
On the whole the good faith, which the defendant has to establish in order be absolved from liability is again explained by Mimin:
"La bonne foi qui rend l'infraction non punissable soutient donc une affinité avec les faits justificatifs de droit commun, la légitime defense, l'autorisation de la loi, l'état de nécessité. Elle est un justificatif propre à la diffamation, et qui s'apparente encore aux autres faits justificatifs généraux en ce que la jurisprudence laisse sa preuve à la charge du prévenu."
It is pertinent here to refer to the observation of Lord Nicholls on the Reynolds case (supra).
"The elasiticity of the common law principle enables interference with freedom of speech to be confined to what is necessary in the circumstances of the case. This elasticity enables the court to give appropriate weight, in today's conditions, to the importance of freedom of expression by the media on all matters of public concern."
If the publisher shows that he has taken necessary steps as a responsible journalist to try and ensure that what is published is accurate and fit for publication, he will be protected. As further pointed out in Lameel v Wall Street Journal (supra), "weight should ordinarily be diven to the professional judgment of an aditor or journalist in the absence of some indication that it was made in a casual, cavalier, slipshod or careless manner". Where the complaint relates to one particular ingredient of a composite story, it is stated in Jameel that "consideration should be given to the thrust of the article which the publisher has published. If the thrust of the article is true, and the public interest condition is satisfied, the inclusion of an inaccurate fact may not have the same appearance of irresponsibility as iàt might if the whole thrust of the article is untrue".
In that context, it is relavant to refer to the following extract from note Mimin (supra)
"... observons qu'il ne s'ensuit pas que, si les faits imputés se trouvent non établis, il y aura nécessairement une faute, que la bonne foi sera nécessairement exclue et que le diffamateur sera nécessairement puni... Mais nos voyons des hypothèses où la simple vraisemblance des faits, conjuguée avec la sincérité de l'agent, la légitimité du but, la convenance du mayen, caractérise suffisamment la bonne foi."
I find it interesting to also point out however that a defence on the ground of reportage as a distinct type of the defence of qualified privilege is available in England provided that the information published is in the public interest and the requirement of responsable journalism is satisfied in not misinforming the public. To qualify as reportage, the thrust of the report as a whole must have the effect reporting of reporting not the truth of the statements but only the fact that they were made. Such a defence would be available in spite of the fact that no steps were taken to verity the accruracy of the statements reported since what was being reported was not the truth of the statements but the fact that they had been made. However, that protection will be lost if the auditor has embelished the report or adopted the truth of the statements or if he does not make the report in a fair; disinterested and neutral manner - vide Roberts v Gable (2008 2 WLR).
To come back to the instant case, the plaintiff will have to establish «faute» and only a prejudicial defamatory statement will be presumed to have been made with malice thus emounting to «faute». It is here apt to quote Lord Atkin in Sim v Stretch (1936 52 T.L. R. 669 at 671, HL) - "Judges and textbook writers alike have found difficulty in defining with precision the word 'defamatory' ." All cases are not alike and a single principle will not necessairily be appropriate in all the circumstances. Il will be for the adjudicator to decide whether the impugned words or extract in the context ot the publication was capable of conveying a defamatory meaning prejudicial to the plaintiff. It is evident that if «faute» is established, then it will be incumbent on the defendants to show that the criteria of responsible journalism were met and that the publication was made in good faith 'surgie d'un ensemble de faits justificatifs'.
Conclusion
(...) I find that there is no insult or defamation, no "fault" or negligence on the part of the defendants in respect of the impugned article in Document D. The author has been of good faith based on faits justificatifs, took the trouble to verify the facts and gave a balanced account of what was published.
On the whole, I find that the impugned articles were written by a reporter who was experienced in that field in charge of the cooperative file. They were of factual nature when read as a whole and cannot be said to be sensational in tone, and were, at the time, strictly of great public concern. The plaintiff's response was sought before publication and the articles have been shown to find their justification in the evidence adduced.
The plaintiff has failed to prove his case under articles 1382 and 1383 of the Civil Code whereas in any case the defendants have amply estalished the public interest and their good faith "surgie d'un ensemble de faits justificatifs". See also Rogbeer v. Union of Employees of CWA 2001 SCJ 180) and Narrainen v. La Sentinelle Limitée & anor (2004 SCJ 116) where the defence of good faith "surgie d'un ensemble de faits justificatifs" was successfully raised.
The plaintiff's case is accordingly dismissed with costs.
Be the first to Write a Comment!
Copyright © 2008 L'Express. All rights reserved. Distributed by AllAfrica Global Media (allAfrica.com). To contact the copyright holder directly for corrections — or for permission to republish or make other authorized use of this material, click here.
AllAfrica aggregates and indexes content from over 125 African news organizations, plus more than 200 other sources, who are responsible for their own reporting and views. Articles and commentaries that identify allAfrica.com as the publisher are produced or commissioned by AllAfrica.
