The Criminal defamation Case

CBK vs. The Sunday Times

PartVIII

13th July 1997

That the accused, being the editor, had the power and was authorised and able, in that capacity, to remove any offending article is admittedly beyond all question.

To consider the above-mentioned grounds in order:

(1) The accused had admitted that he sanctioned or authorised the publication of the relevant article in the city edition. To quote from the accused’s evidence given on 23.09.1996 (in answer to question put by the court) which was as follows :-

“Q : Did you find anything defamatory in the article ?

A : Absolutely nothing in the article.

Q : Did you read this article ?

A : I read this article.

Q : Did you read the excerpts of the article wherein it is stated that Her Excellency The President attended a birthday party of Mr. Asita Perera.

A : Yes.

Q: What is your position now, at what stage or when did you read it?

A . I read it after the provincial edition was released but before the city edition was printed.”

Accused had further said on the same date: “I read the whole article from beginning to the end before the city edition was published ..... If there had been anything defamatory in the article I would have either altered or removed that portion completely.”

Continuing his evidence on 23.09.96 the accused had said:

“Q: As an editor, after having read this article before the publication of the edition, did you approve of it for publication ?

A: I approved the whole article for publication.

Q : If you had not approved anything for publication what would have happened to the whole article ?

A : It would have been removed and replaced with some other article.

Q: What would be the position, if you had not approved the article relevant to this case?

A : It would not have been published.”

In fact, in his evidence given on 23.09.1996 (12.45 p.m.) the accused had unreservedly stated that he did expressly sanction the publication in question.

“Q : Is it with your sanction that the article “Anura-Sooting says courting days are here” was published in the Sunday Times of l9th February 1994.

A : I say yes.

Q : Therefore you concede that it is with your sanction that the article under the heading “Anura Sootin says, courting days are here” was published in the Sunday Times of l9th February 1994?

A . I say yes.

Thus by sanctioning the publication, admittedly in the city edition, the accused had procured the publication of the relevant article. It is to be observed that it is the publication, that is, making the defamatory matter known to a third party (as explained above) that attracts liability either civil or criminal. As I stated in my earlier order dated 23.05.1996 - the essence of the offence of defamation is publication and that necessarily requires publicity to be given to the imputation (by means of publication). It is thus evident that if a person merely composes a libel or defamatory article but refrains from making it public he could not be held liable for the offence of defamation though he had no doubt “made” the article or the defamatory matter within meaning of section 479 of the Penal Code which creates and defines the offence. If not for the sanction given by the accused the article would never have received publicity for it would not have been so published in the city edition. The accused had not only authorised the publication but had even given a reason for doing so - the reason being that he thought the article to be innocuous or not defamatory. It is not open to anyone to say that one is not liable for a publication which one had intended and authorised. By way of explanation and as a matter of interest it may be pointed out that it had been held in decided cases that leaving documents where they might be read by others and putting letters in wrong envelope (HEBDITCH VS. MACILWAINE (l894) 2 QB 54 at 64 - speaking so loudly that others are likely to overhear (White Vs J and F Stone (1934) 2 K.B. 827 all amount to publication.

It had been pointed out at page1248 Ratan Lal-Thakore (Law of Crimes) 18th Edition. “It is immaterial whether the person publishing the defamatory statement intended to publish or Not - provided he did so publish it, in fact.

To consider the ground (ii) referred to at page 183 hereof on which the accused would be liable in respect of the relevant publication - it is to be noticed that the accused being the editor who was able and authorised to control the selection of material and items to be published in the newspaper had failed to remove the excerpt relevant to the indictment and thus had rendered or constituted himself a consenting party to the publication. It was on this principle that the defendant in Byrne Vs. Deane (1937) 1 K B 818 at 838 was held liable for the publication of defamatory material. The liability arises on the failure to remove defamatory matter because such failure constitutes publication.’ Explaining this principle of liability - C.D. Baker (Senior Lecturer in the University of Adelaide) in his treatise on Tort (page 283) states that there must be control by the defendant (in this case by the accused-editor) over the place where the defamatory statement appears which in this case (under consideration by me) was the issue of Sunday Times of 19.02.1995. It was on this principle that in Byrne Vs Deane (supra) the secretary of a club was held liable for publication where the defamatory matter had been displayed on the notice board of the club - the club premises being under the control of the defendant who was the secretary. In Byrne’s case the failure by the Secretary - who was authorised and able to remove the defamatory matter - was held to be publication by the secretary of the club - although the defamatory material was the work not of the secretary himself but of another.

In the evidence given by the accused on 28.10.1996 (11.40 a.m.) he had stated: “From the city edition I had the time and I could have removed it, if I thought it defamatory, I thought otherwise that there is no need to remove it....”

The above excerpt from the accused’s evidence is proof of the fact that the accused had failed to remove the relevant defamatory excerpt although he had all the opportunity to do so - as he (the accused) had said from the city edition. The accused was also undoubtedly authorised and able to remove it by virtue of the fact that he was the editor. In any event his failure to do so clearly amounts to publication by him ( the accused).

Harry Street in his treatise on Tort explains that failure by a person who is authorised and able to remove defamatory matter although such defamatory matter may be the work of another - is publication by him, i.e. publication by the person who having authority to remove it fails to do so. In any event the accused is liable for, on his own showing, as pointed out above, he had clearly and overtly sanctioned the relevant publication concerning Her Excellency the President. (Vide the accused’s evidence reproduced at pages 185 and 186 hereof - i.e. of this judgment).

Although, I have considered above the criminal liability of the accused on the basis that the accused had seen the relevant article only after the publication of the provincial edition and had sanctioned its publication only in the city edition which was the later publication - there is no doubt in my mind that he (the accused editor) had seen the relevant article (even assuming for the sake of argument that he did not, in fact write it) even before the publication of the provincial edition. The accused, in fact, had said, as pointed out above at pages 153 and 154 hereof, that he did not exclude the possibility of the relevant proof page being sent to him even prior to the publication of the provincial edition - although, he sought to exclude, in the vaguest terms, the fact of his being there admitted by the accused he was there to read the relevant article before publication in the city edition there is no reason (on the evidence) to infer or to suppose he was not there to read the relevant article before the publication in provincial edition. But, yet he had not explicitly stated that he was not there. In fact as pointed out at page 158 hereof, the accused had said that he read or saw the whole paper in its entirety (in proof) prior to publication of the provincial edition. And there is no reason to suppose that he did so excluding the relevant article. In fact the accused’s own evidence given on 03.07.1996 that he read the article, (to use accused’s own words): “just before publication” is - final proof of the fact that he read the article before any publication - whether in the provincial or city edition. Realistically, considering the matter, I am as certain that the accused had sanctioned publication of the relevant article in the provincial edition as well - as I am of the fact that he did admittedly sanction its publication in the city edition.

It is to be observed that I had made a reasoned factual finding that the accused himself was the writer or that he (the accused) was the writer who “composed” the entire gossip column on the relevant date. In the light of that finding and if viewed against the background of that finding I am as certain that the accused had authorised the publication of the relevant article in the provincial edition as well - as I am of the fact that he did admittedly sanction its publication in the city edition.

It is to be observed that I had made a reasoned factual finding that the accused himself was the writer or that he (the accused) was the writer who “composed” the entire gossip column on the relevant date. In the light of that finding and if viewed against the background of that finding - the conclusion is inescapable that the accused was the one (person) who published or authorised the publication of the relevant article for he (the accused) would have composed it (the relevant gossip column) expressly for the purpose of publication, and for no other (purpose).

The learned President’s counsel for the defence relentlessly argued, all alone right up to 04.06.1997 which was the final date of oral submissions that, whatever it was, the accused had no intention to defame - intention to defame being a constituent element of the offence of defamation as defined in section 479 of the Penal Code. It was pointed out by him that the owner of the Press Mr. Wijewardena was a close friend or associate of Her Excellency the President and by defaming the President - he (the accused) would be incurring the displeasure of the owner and even run the risk of losing his (accused’s) job. But that argument seems to be devoid of any merit for the proof of the pudding is in the eating - and the results of consequences visualised by the defence counsel do not seem to have ensued. Simple answer to the defence argument outlined above had been given in a case that had been decided as far back as 1846 by Parke B. in G.Brien Vs. Clement referred to at page 1248 (Ratanlal and Thakore). To quote the relevant excerpt from that judgment

“Everything printed or written, which reflect on the character of another, and is published without lawful justification or excuse, is a libel whatever the intention may have been.

After all, as is well known, intention is a psychological fact and that had to be inferred, particularly in a case of this sort, almost necessarily and exclusively from the words used (The reasons for holding the relevant excerpt to be defamatory will be found in this judgment from page 221 onwards). As stated above as well, the question as to whether the relevant excerpt is defamatory or not will be treated in the context of the consideration of count No.02.

Next, to proceed to the consideration of count No.02 - the gist of which count is that the publication of the relevant excerpt (reproduced at pages 01 and 02 hereof) amounted to the offence of defamation as defined in Section 479 of the Penal Code, and therefore the accused-editor is guilty of an offence in terms of Sections 14 and 15 of the Press Council Law.

The learned President’s Counsel for the defence had raised numerous points, particularly in regard to count No.02 which were hitherto unknown, so to say, in the course of his oral submissions made on 24th and 25th April and on 05th May and even on the 04th instant and it is proposed to enumerate them and deal with the same in due course. But before that - I wish to deal with the broad question as to when or under what circumstances the court could have “deemed” the accused-editor to be guilty of an offence in terms of Section 14 and 15 of the Press Council Law in the light of the facts peculiar to this case. In other words when or how does the editor become guilty of an offence in terms of Section 14 and l5 of the Press Council Law in consequence of a publication in a Newspaper? It is to be observed that it was only when the accused-editor was ‘deemed’ to be guilty of an offence in terms of Section 14 of the Press Council Law that the court could have called upon the accused for his defence - the defences prescribed by the law being two-fold: (a) that the offence in question was committed without the knowledge of the accused-editor or (b) that the accused editor had exercised “all due diligence to prevent the commission of the offence.” In considering the 2nd count laid under sections 14 and 15 of the Press Council Law (which is perhaps, wrongly framed as alternative to the 1st count as there was no need to do so) first point I have to consider (in the particular circumstances of this case) is whether:-

(a) The article or “the statement or matter” concerning Her Excellency the President, published in the relevant issue of the “Sunday Times” newspaper “will amount to defamation .......... within the meaning of section 479 of the Penal Code.” If the relevant publication (which has caused this furore) does not “amount to” or is not equivalent to or identical with the offence of Defamation as defined in the Penal Code - the matter ends there and we could have called it a day and nothing further would need to be considered in relation to count No.02. It is to be observed that the question whether the “statement or matter” concerning Her Excellency the President “will amount to defamation within the meaning of section 479 of the Penal Code” will have to be considered, in terms of the law, i.e. section 15 of the Press Council Law, as at the stage of the close of the prosecution - at which stage (in this case) the submission of “no case to answer” was made by the defence counsel. If, as at the stage of the close of the prosecution case - the evidence, on record as at that stage - did not warrant a finding that the “statement or matter” that had been published did “amount to the offence of defamation” the court had to acquit the accused on the count laid under the Press Council Law - for it was only if it could be held that the relevant “statement or matter” amounted to defamation “that the submission of no case to answer” - could be rejected and the accused called upon for his defence. In this context for a better understanding of the issues involved, it is apposite to reproduce the relevant excerpt of section 15 of the Press Council Law (under which the accused is indicted on the alternative count in conjunction with section 14 of the same Law) which is as follows:- Every person who publishes, or causes the publication of, in any news paper - .....................

(b) any statement or matter concerning a person WHICH WILL AMOUNT TO DEFAMATION .. WITHIN THE MEANING OF SECTION 479 OF THE PENAL CODE ........... shall be guilty of an offence ..........”.

On the alternative count (which is the 2nd count in the indictment) the accused is indicted, as remarked above, under section 15 of the Press Council Law in conjunction with section 14 of the same law which, to quote the relevant excerpt (of the latter section), reads thus:- “In the case of any offence under this Law committed through means of a newspaper the ... editor... of such newspaper shall be deemed to be guilty of that offence.”

Thus it will be readily seen (against the background of the facts relevant to this case or the indictment) that the editor of the newspaper “shall be deemed to be guilty’’ of an offence only if an offence can be held to have been committed or constituted in consequence of the relevant publication concerning Her Excellency the President. And, what is more, the relevant publication (in respect of which the accused-editor is indicted) can be held to have resulted in the commission of an offence only, but only, if the relevant matter or statement concerning the President published in the newspaper in question “WILL AMOUNT TO DEFAMATION ................. WITHlIN THE MEANING OF SECTION 479 OF THE PENAL CODE” - as is required by section 15 of the Press Council Law in terms of which, the 2nd count is framed. In other words, as a necessary condition - precedent to the editor being deemed to be guilty - by virtue of the operation of sections 14 and 15 of the Press Council Law, I should be satisfied on the prosecution evidence that had been placed before me, (be it noted) AS AT THE STAGE OF THE CLOSE OF THE PROSECUTION CASE, (or the article or the “statement or matter” complained of must carry conviction to me) that the relevant publication “amou-nted to Defamation” within the meaning of section 479 of the Penal Code as required by Section 15 of the Press Council Law. In other words, before the editor can be “deemed to be guilty of an offence” in consequence of the publication of “any statement or matter” I must be satisfied.

The End

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