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;
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