Appeal court ruling in ST case

(1) That you did by a publication in The Sunday Times Newspaper of 19th February 1995, containing the words that were intended to be read, namely, the following words that appeared in the said newspaper under the heading "Anura: Sootin says courting days are here":-

"Therefore, lets start at the top, about a party graced by none other than Her Excellency the President, Chandrika Kumaratunga. The occasion was the birthday party of Liberal Party National List MP Asitha Perera (Well Mudliyar Chanaka - how?). The place was Mr. Perera's permanent suite at the 5-star Lanka Oberoi. But this time, the President was more circumspect about her appearance and used the rear entrance of the hotel, watched by a phalanx of security guards, and myself."

"She spent about 90 minutes at the party, from about 12.30 in the heat of the silent night until 2.00 a.m. and, as for what she ate, we assure you; it was not food from the Hilton. The reading public now has a fair idea of it's first citizen's Epicurean tastes. But what of her estranged brother?",

Published such imputation regarding Her Excellency the President of the Democratic Socialist Republic of Sri Lanka, Chandrika Bandaranaike Kumaratunga, with intent to harm her reputation or while knowing or having reason to believe that such imputation would harm her reputation and that you have thereby committed an offence punishable under Section 480 of the Penal Code.

(2) In the alternative to the first count that the said imputation referred to above (count 1) concerning Her Excellency the President Chandrika Bandaranaike Kumaratunga was published by a person in The Sunday Times Newspaper of 19th February, 1995, and that the person who published the said imputation with the intent to harm her reputation or while knowing or having reason to believe that such imputation would harm her reputation and thereby committed an offence punishable under Section 479 of the Penal Code read with Section 15 of the Sri Lanka Press Council Law No. 5 of 1973 and that you being the Editor of the said newspaper have therefore committed an offence punishable under Section 15 read with Section 14 of the Press Council Law.

After trial the learned High Court Judge found the accused-appellant guilty on both counts in the indictment and thereafter he imposed the following sentences. On the 1st count the accused-appellant was sentenced to a term of 12 months simple imprisonment which was suspended for a period of 7 years and to a fine of Rs. 7,500/- with a default term of 4 months simple imprisonment. On the 2nd count he was sentenced to a term of 6 months simple imprisonment which was suspended for a period of 7 years and to a fine of Rs. 2,500/- with a default term of 3 months simple imprisonment. The present appeal is against the said conviction and sentence.

At the trial the prosecution led the evidence of Ranjith Wijewardene, Asitha Perera, Simon Perera, Davin Wimalaratne and Sub Inspector Waidyasekara. According to Ranjith Wijewardene the proprietor of The Sunday Times Newspaper, the accused-appellant was the editor of this paper since 1990. In term of the declaration made by him under the Sri Lanka Press Council Law No. 5 of 1973, for the year 1995, produced marked P1, he had given the name and address of the accused-appellant as the editor of The Sunday Times Newspaper. He stated that the accused-appellant was responsible for the news that was published in the said newspaper and admitted that in The Sunday Times Newspaper dated 19.02.1995 at Page 9, an article under the caption "Anura: Sootin says courting days are here" had appeared. He was unable to say as to who wrote this article but the accused-appellant as the editor of The Sunday Times Newspaper was responsible for this article. A copy of the document in which information was furnished by him under Section 2 of the Newspapers Ordinance to the Department of National Archives was produced marked P2, and The Sunday Times Newspaper dated 19.02.1995 was produced marked P3. The relevant article appearing in the said paper (Provincial Edition) was produced marked P3 (a). [Later in the proceedings the said article which appeared in the city edition was marked P4 (a)]. This witness testified that the material referred to in P3 (a) - P4 (a) was false and if he knew that it was so, he would not have permitted this article to be published. At the domestic inquiry that was conducted in relation to this matter it was found that Her Excellency the President had not attended the said birthday party. He further said that even though it is the normal practice for his newspaper to express regret when any error of this nature was committed by his Newspaper, in this instance this practice had not been followed by the editor. Witness admitted that the material contained in the article in question was disrespectful of the President. Finally when the Court questioned the witness as to whether the accused-appellant did not know about the said article [P3 (a) - P4 (a)] that was published in his paper (P3) he said that it was difficult for him to answer this question.

Asitha Perera in his evidence stated that a Japanese friend permitted him the use of his private suite at Oberoi Hotel for his birthday party held on 05.02.1995. He had about six guests and the party started roughly at about 8.30 p.m. and was over by about 11.30 p.m. or 12.00 midnight. Thereafter he also left the hotel and spent the night at his residence No. 11, Police Park, Colombo 5. The witness said that Her excellency the President did not attend the party as she was not invited and therefore if someone said that Her Excellency attended this party, it was a diabolical lie. According to him the party held on 05.02.1995 was the only instance he ever had a party at Oberoi Hotel. Subsequently when he read in The Sunday Times Newspaper (P3) this article [P3(a) - P4(a)] which carried the story that Her Excellency the President had been present at his birthday party, he got the impression that it was an attempt to sling mud at the President. Simon Perera Assistant Commissioner Sri Lanka Press Council, testified that under the Press Council Law, No. 5 of 1973 there is a requirement to furnish information relating to a Newspaper. According to him the document marked P1, related to the Wijeya Newspaper where the Printer of the Newspaper is referred to as the Wijeya Newspapers (Pvt) Ltd., and the editor's name is given as Sinha Ratnatunga. Further there is a requirement for the Printer of this paper to send the Newspaper published by the Printer within 24 hours after publication to the Press Commissioner and accordingly he had received The Sunday Times Newspaper dated 19.02.1995 (P3) on 20.02.1995. He admitted that the CID questioned him about the article marked P3(a) - P4(a) which appeared in The Sunday Times Newspaper marked P3. Davin Wimalaratne, Director National Archives stated in his evidence that in terms of the Newspapers Ordinance there is a requirement for a Newspaper Company to send a certified copy of the newspaper with an additional copy on the day after the publication of the Newspaper to the Archives. According to the information set out in the document marked P2, The Sunday Times Newspaper has been registered and this declaration was received by him on 13.06.1995. He also received a certified copy of The Sunday Times Newspaper dated 19.02.1995 with another copy. This paper had carried the article marked P3(a) - P4(a) concerning a birthday party attended by Her Excellency the President. He further said that he made a statement to the CID with regard to this matter. Sub Inspector Waidyasekera of the CID said that, consequent to a complaint made by Her Excellency the President on 21.02.1995, concerning an article which had appeared in The Sunday Times Newspaper of 19.02.1995, he proceeded to the office of the Wijeya Newspapers Limited with ASP Guruge on 22.02.1995, in order to trace the printing plate relating to the article in question. In this office he was able to trace the printing plate which was produced marked P7, relating to page 9 which carried the said article in The Sunday Times Newspaper of 19.02.1995. He further said that they met the accused-appellant and his statement was later recorded at the CID office. According to this witness he was unable to trace the manuscript of the said article and also failed to get at the person who wrote the article in question even though he had questioned the accused-appellant. After his evidence the prosecution case was closed leading in evidence the documents marked P1 to P7.

After the close of the prosecution case Learned Senior Counsel for the defence made an application to Court in terms of Section 200 (1) of the Code of Criminal Procedure Act, No. 15 of 1979, and moved for an acquittal of the accused-appellant on the basis that the charges in the indictment had not been established. Learned High Court Judge however by his order dated 23.05.1996 decided that there were grounds for proceeding with the trial and called upon the accused-appellant for his defence. Thereafter the accused-appellant had sought to canvass the said order of the Learned High Court Judge dated 23.05.1996 by way of revision in the Court of Appeal. The accused-appellant was unsuccessful in the Court of Appeal, in that the Court refused to issue notice stating that the accused-appellant had not made out a case. There after the accused-appellant sought to challenge the said order of the Court of Appeal refusing notice, in the Supreme Court by way of special leave to appeal. However the Supreme Court by order dated 22.07.1996 refused his application for special leave to appeal.

Thereafter the accused-appellant gave evidence in his defence and called several witnesses on his behalf. However he did not invoke anyone of the ten (10) defences available to him under Section 479 of the Penal Code. Accused-appellant took up two main positions in his defence. Firstly, that the article in question P3 (a) - P4 (a) was not defamatory in that the words were harmless and did not in any way reflect on the character of Her Excellency the President. Secondly, that he was not the writer of article in question. Nevertheless he refused to divulge the name of the writer. With regard to the publication of the article, even though he took up various contradictory and inconsistent positions, it would appear that he had virtually admitted having seen the article before the publication. The other witnesses were called by the accused-appellant to show that the article in question was not defamatory in their view. However in cross-examination some of these witnesses admitted the possibility that some reasonable right thinking persons would have considered the article in question to bear defamatory meaning. It was also the evidence of some of these witnesses that those who considered the article to be defamatory of the President could not be treated as being reasonable or fair minded persons. It is to be observed that opinion evidence is irrelevant in these proceedings. Hence at one stage, the court had to make an order refusing the defence from calling any more witnesses to testify to the question whether the article in question [P3(a) - P4 (a)] was defamatory or not.

At the hearing of this appeal it was submitted by learned Counsel for the accused-appellant that the learned Trial Judge has misdirected himself with regard to the contents of the alleged publication and thereby arrived at a wrong conclusion against the accused-appellant namely, that the article in question was defamatory. Learned Counsel further contended that there was a failure on the part of the trial Judge to consider the article in question with an open mind from the point of view of the reasonable reader. Counsel submitted that meanings of the phrases such as "more circumspect", "rear entrance", "in the heat of the silent night" and "Epicurean tastes" were over exaggerated by the High Court Judge to give a sinister meaning. Further learned trial judge has failed to consider the article as it appeared in the publication by paraphrasing the article and omitting the word "party", and thereby sought to examine a different article. He contended that by paraphrasing the article the trial judge had given a distorted version to the article and had concluded that the President has gone to the hotel for an immoral purpose. It was also suggested by Counsel that the Trial Judge has prejudged the issue by holding that the article in question was defamatory in his preliminary order dated 23.05.1996 and that when he decided the article to be defamatory in his final judgment dated 01.07.1997 he has considered additional material to hold that the article in question was defamatory. 

One important question to be decided in this case, is whether the article in question is defamatory or not, in terms of the Penal Code. A defamatory statement may be referred to as one which has a tendency to injure the reputation of a person. In other words as a result of the defamatory statement the ordinary, reasonable or right thinking members of public would regard the person to whom the defamatory statement is referred to, with feelings of hatred, contempt, ridicule or disrespect. The test is objective and therefore the person responsible for the defamatory statement cannot be heard to say that he did not intend the statement to be defamatory or that it was uttered in jest. Intention to harm has to be gathered from the words used applying the reasonable man's test. Further the tendency to injure or lower the reputation of the person to whom the defamatory statement is directed at, would be sufficient, even though the persons who read the defamatory statement may not believe it or may even consider it to be untrue. Therefore it is settled law that a statement may be defamatory even though the readers do not believe it to be true. 

The article that appeared in the relevant issues of The Sunday Times Newspaper carried the following words under the heading "Anura: Sootin says courting days are here". "Therefore, lets start at the top, about a party graced by none other than Her Excellency the President, Chandrika Kumaratunga. The occasion was the birthday party of Liberal Party National List M.P. Asitha Perera (Well Mudliyar Chanaka - how?). The place was Mr. Perera's permanent suite at the 5-star Lanka Oberoi. But this time, the President was more circumspect about her appearance and used the rear entrance of the hotel, watched by a phalanx of security guards, and myself. She spent about 90 minutes at the party, from about 12.30 in the heat of the silent night until 2.00 a.m. and, as for what she ate, we assure you; it was not food from the Hilton. The reading public now has a fair idea of its first citizen's Epicurean tastes. But what of her estranged brother?". 

At the first glance of this article, it could be said without any measure of doubt that the article in question was certainly not complimentary of Her Excellency the President of this country. The place to which the President had gone was Mr. Asitha Perera's permanent suite at Lanka Oberoi. The manner of entering to the Hotel, the article suggests that it was done cautiously or watchfully or in a manner to screen herself from being observed by using the rear entrance of the Hotel. The time she had spent at the party was 90 minutes, from about 12.30 in the heat of the silent night until 2.00 a.m. Readers are assured as to what the President ate, it was not food from Hilton. Finally the writer mischievously invites the reading public to have a fair idea of the President's Epicurean tastes, and poses the question, what of her estranged brother? The article mentions no guests, no food and on the other hand impliedly the readers are told that what the President ate was not food. The phrase "it was not food from the Hilton" does not convey any sense other than to exclude food. Finally the reading public are told that they will have a fair idea of the President's Epicurean tastes. Therefore since food has been excluded the phrase "Epicurean tastes" would convey to the reader the impression of sensual enjoyment. 

This article conveys to the reader that the President was on her guard of being observed and therefore she used the back door to gain entrance to the Hotel. The time given in the article suggests that it was the dead of night, an ungodly hour and Her Excellency spent about 90 minutes in the heat of the silent night. It is pertinent to emphasise the fact that according to the unimpugned and unassailed evidence of Asitha Perera by 11.30 p.m. or 12 midnight the party which he had on 05.02.1995 or was over. Therefore it is manifestly clear that the writer of the article deliberately maliciously and wrongfully endeavoured to impress upon the reader's mind the idea of Her Excellency indulging in sensuous enjoyment as opposed to enjoying food. Further in the absence of any other guests being mentioned (unlike in the other parties referred to in this column) the readers will get the impression that the only guest was Her Excellency the President and the host was Asitha Perera. In this perspective the heading of the article courting days are here is not without any significance. Therefore as learned Additional Solicitor General submitted this article is suggestive of romance. 

In evaluating defamatory material law does not apply rules of construction which are used for the interpretation of a contract or a will. Such interpretations are not appropriate for determining natural or ordinary meanings of words in an action for libel or defamation. The correct method of approach to the question of construction was considered at length in the House of Lords in the case of Rubber Improvement Ltd., vs. Daily Telegraph Ltd., 1964 AC page 234 at 258, where Lord Reid remarked thus: 

"There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs... What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning." 

Further when the Court is called upon to decide how a reasonable man would understand the words alleged to be defamatory in an article, Lord Read in the case of Morgan vs. Odhams Press Ltd., 1971 2 AER 1156 at 1162-1163 observed as follows: 

"If we... take the ordinary man as our guide then we must accept a certain amount of loose thinking. The ordinary man does not formulate reasons in his own mind: he gets a general impression and one can expect him to look again before coming to a conclusion and acting on it. But formulated reasons are very often an afterthought. The publishers of newspapers must know the habits of mind of their readers and I see no injustice in holding them liable if readers, behaving as they normally do, honestly reach conclusions which they might be expected to reach. If one were to adopt a stricter standard it would be too easy for purveyors of gossip to disguise their defamatory matter so that the judge would have to say that there is insufficient evidence to entitle the plaintiff to go to trial...". 

From what has been conveyed in this article can anyone blame any reader in coming to the conclusion that Her Excellency the President had entered the hotel from the back door, in a way she would not be noticed to gain entry to the permanent suite of Asitha Perera, in the dead of night and she had spent about 90 minutes with Asitha Perera, in the heat of the silent night. The picture conveyed to the reader being sensuous enjoyment, since there is a reference in the article to the Epicurean tastes and mischievously the writer assured the reader that what the President ate, it was not food. Therefore it is a calculated attempt by the writer to injure the reputation of the President by exposing her to hatred, contempt or ridicule in the eyes of the ordinary, right-thinking members of the society who have read this article. Furthermore the eminence or the stature of the person concerned as in this case, the democratically elected President of this country or the first citizen of the country would make the defamatory statement more injurious. Besides in this instance the material in the article being false, it would strengthen the proposition that the writer or the publisher wanted to defame the President. Cumulative effect would be that the article in question will have the capacity to impute dishonourable conduct to the President. 

The meaning intended by the writer or the publisher may not be very relevant for the purpose of construing the words in an article. The relevant factor is how would a reasonable man may have understood such words. The position in English Law is now settled. As Russell L.J. in the case of Cassidy vs. Daily Mirror Newspapers Ltd., 1929 2 KB 331 at 354 put it shortly. "Liability for libel does not depend on the intention of the defamer; but on the fact of defamation". In our law, Penal Code makes the requisite criminal intention or knowledge an additional ingredient of the offence of defamation and the burden of proving it is on the prosecution. Vide Vaikunthavasan vs. The Queen 56 NLR 102. Further the meaning in which the words were in fact understood is irrelevant for the purpose of deciding the natural and ordinary meaning of the words. As the law of defamation is concerned with the effect of the words on ordinary people it might have been supposed that the evidence of the sense in which the words were in fact understood by the readers would be admissible. However, it is clear that no such evidence can be admitted. This long-standing rule as stated by Goddard L.J. in Hough vs. London Express Newspaper Ltd., 1940 2 KB 507 at 515 reads as follows: "In the case of words defamatory in their ordinary sense the plaintiff has to prove no more than that they were published; he cannot call witnesses to prove what they understood by the words;... the only question is, might reasonable people understand them in a defamatory sense?" In other words what is necessary to be considered is whether the words in the article have the potential to convey a defamatory meaning to an average reader. Therefore it is unnecessary to show that the reputation of Her Excellency the President has in fact been injuriously affected.

To be continued next week

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