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CAPPEE v. WAYMAN.
P. C., Colombo, 76,361.
Telegraphic press message—Ordinance No. 19 of 1898, s. 2—Wilfully printingand publishing telegram before lapse of 48 hours from time of firstpublication—Liability of editor for unlawful act of sub-editor.
The Times of Ceylon newspaper having printed and published atelegraphic message in its evening issue of the 20th June, 1002, the sub-editor of the Ceylon Standard published in the Ceylon Standard thesubstance of the said message. In a prosecution against the editor ofthe Ceylon Standard for wilfully printing and publishing the saidmessage, in violation of section 2 of the Ordinance No. 19 of 1898,—
Held, per Moncbbiff, A.C.J., that section 5 of that Ordinance, whichprovides that:“proof that any person is acting as editor of any
newspaper in which there has been any publication contrary to theprovisions of this Ordinance shall be primi fade evidence that suchperson has wilfully caused such unlawful publication," means that theperson who acted as editor is presumed to have wilfully caused theunlawful publication, and that the onus lay on him to show that he didnot act wilfully.
Where the sub-editor of the Ceylon Standard explained that, in theabsence of the editor of that newspaper, he wrote the paragraphcomplained of, upon information received from a person who happenedto come into the office shortly after 6 p.m. on the 20th, and after writingit glanced at the evening copy of the Times of Ceylon, but did not lookat theportion ofthe paperwhere thetelegramswere printed,nor
considered it part of his duty to ransack the paper to find out whetherthe news he had received from the casual visitor was there, knowing as-he didthat thatpaper wasone of thetwo usualrecipients ofsuch
. Held-,that suchconduct onthe part ofthe sub-editor of the Ceylon
Standard amounted to wilfulness.
Held further, that, though a master is not responsible for the criminalact of his servant done during his absence and without his authority,yet, as the editor of the Ceylon Standard knew that his sub-editor hadbeen indifficultieson previousoccasions with regardto the specialtele-
grams of the Times of Ceylon, and as he neglected to issue to him suchinstructions as would prevent a recurrence of the unlawful publicationcomplained of, his conduct amounted to wilfulness, and was an offenceunder section 2 of the Ordinance.
HE editor of the Ceylon Standard was convicted by the PoliceMagistrate of Colombo for wilfully causing to be published
on the 21st day of June, 1902, in the Ceylon Standard, matter con-trary to the provisions of the Ordinance No. 19 of. 1898, to wit, thefollowing paragraph containing the substance of a telegramreceived by the Times of Ceylon on the 20th June, at 6 a.m., andprinted and published by it in its evening issue of the same date.
The paragraph complained of was as follows:—
“ The second Ceylon contingent due here on the 10th July.We have. received information to the effect that the second Ceylon
August 4, 5,
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contingent, who left these shores early last month for SouthAfrica, will be on their way homeward-bound in a few days, andare due here on the 10th proximo. Although the members of the —contingent have had no opportunity of distinguishing themselves,a hearty welcome baok will no doubt await them.”
The Magistrate (Mr. B. B. Hellings) found that the accused wasengaged in the management of the Ceylon Standard as editor tillabout 5 p.u. on the 20th June; that during his absence one Mr.
Staples was in charge of the office as sub-editor; and that thelatter wrote the foregoing paragraph and published it, overlookingthe telegram of the Times of Geylon, though it was printed with,the largest head-lines. The Magistrate sentenced the editor to afine of Bs. 50.
The accused appealed.
Rudra (with him H. Jayawardene), for the accused, appellant.
—The offence created by the Ordinance No. 19 of 1898, sections 1and 2, was the wilful printing and publishing of a telegramreceived by another newspaper, but the plaint submitted to theMagistrate did not allege wilfulness; the plaint was thereforeessentially defective (Soose v. Arumugam, 4 S. C. G. 36.) Itcannot be said that section 425 of the Criminal Procedure Codecured this defect, because it has been held not to apply to sub-stantial errors of law. The Ordinance did not define the term“wilful.” In Queen v. Badger (25 L. J. M. C. 90) “ wilful ” washeld to denote evil intention. There was no evil intention onthe part of Mr. Wayman, the editor, whatever might be saidagainst Mr. Staples. In Queen v. Holbrook (3 Q. B. D. 62) theprincipal was held not liable for the act of his agent, unless he wasmade so by statute or it was done at his bidding. That was the lawin India (Mayne's Criminal Law of India,, p. 242). In Ceylon,too, the Supreme Court has held so (Herft v. Northway, 9 S.
C. G. 142). The paragraph complained of was written andpublished by Mr. Staples in the absence and without theknowledge of Mr. Wayman. That was a complete answer to theprosecution. Mr. Staples may be made responsible for his own act,but Mr. Wayman was innocent (R. v. Bradlaugh, 9, Ruling Gas.
121; Chisholm v. Boulton, 22, Q. B. D. 736; Roberts v. Woodwardf25 Q. B. D. 412; Ramasamy v. Lokanwnda, 1. L. R. 9 Mad- 387).
Domhorst, for complainant, respondent.—In section 1 of theOrdinance, printing or publishing without the consent of thereceiver of the telegram is prohibited, but in' section 2 wilfulprinting and publishing is made penal. The sections readtogether showed that “ and ” in section 2 was an error for “ or ”.Obviously the printer was intended to be made responsible as8-
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August 4, t
well as the publisher. The omission of the word “ wilful " in’» the plaint is not fatal. That objection was not taken in theCojrt, below, nor in the petition of appeal. The decision inSoose v. Arumugam (4 S. C. C. 36) was characteristic of years goneby, when purely technical objections were taken and allowed, butnow section 425 of the Criminal Procedure Code prevents such acourse, except when the accused appears to have been prejudiced.No prejudice has been suffered. The decision in Chisholm v. Doultondoes not apply to the circumstances of the present case, becausethe Legislature here has enacted that mere proof of the unlawfulpublication should raise a presumption of wilfulness. The termhas been defined in Stroud’s Judicial Dictionary to meannegligengce, or maliciousness, or want of proper caution or care(R. v. Stephens, 35 L. J. Q. B. 201). The question is, whether Mr.Staples was guilty of negligence in not satisfying himself thatthe information he published was to be found in the columns, ofthe Times of Ceylon, and if negligent or wanting in propercaution, whether Mr. Wayman was responsible for his conduct.There were two sources of telegraphic information in Ceylon,one was Reuter’s Agency and the other was paid for heavily bythe proprietors of certain newspapers. Mr. Staples must haveknown that the subject of his paragraph was not sent by Reuter.If he thought that Mr. van Cuylenburg, who is said to have givenhim the information, had it from the Volunteer headquarters, heoould have easily inquired there and ascertained whether suchinformation reached the headquarters by means of a specialtelegram, official or otherwise, from abroad.- He made no suchinquiry, did not call for Reuter’s telegrams to see whether it hadcome by that channel, nor did he scan the Times of Ceylon for it.He took no precaution whatever. His conduct was wilful in thesense that he shut his eyes, purposely blinded himself, notwishing to see what he might have easily seen. Mr. Wayman wasclearly responsible for the wilfulness of his sub-editor, in that hemight have prevented the unlawful publication of such telegrams,but took no measures to bring about that result. The Ordinancemade the very fact of the unlawful publication a wilful offence,and held the editor 'liable. It declared him liable prirni facie.It did not indicate the defences that would rebut such liability.The English Act (6 and 7 Viet., cap. 96, § 7) provided, in the caseof libel, that a defendant may rebut the presumption that theparagraph complained of was inserted and published withouthis knowledge, authority, or consent, and without any want of duecare or caution on his part. If some such principle be imported•Into the Ordinance, it would be for Mr. Wayman to prove not'
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merely absence of knowledge or authority, but absence of any1902.
lack of caution or care. His defence wholly fails inthis
respect. His paper went to press at 2 a.m., but he leaves theoffice—
and goes away at 4.30 p.h. He knew that the evening paperscame in after he went. He knew also that the Ordinance hadbeen infringed three times before, and yet' he gave no instructionsas to preventing the recurrence of similar offences. He was aswilful as his sub-editor.
Cur. adv. vult.
11th August, 1902. Moncbbiff, A.C.J.—
The complainants in this case, Messrs. Capper & Sons, are theproprietors of the Times of Ceylon, and the defendant, Mr.Wayman, is the editor of the Ceylon Standard. Both of thesejournals are published in Colombo, the Times being publishedin the evening and the Standard in the morning. Thecom-
plainants say that the defendant made use of a special telegramwhich appeared in the issue of the Times on the 20th June,
1902, in violation of the provisions of an Ordinance which waspassed in 1898. By the terms of that Ordinance the burden wasplaced on the defendant to prove that he did not transgress thelaw. It seems to me that the questions involved in the case arethese:First, has the defendant proved that he did not wilfully
do the act charged against him? Secondly, did his sub-editor dothe act in question, and, as a matter of law, that if the sub-editordid the act, was the defendant liable for what is a criminal actcommitted by one to whom his powers had been delegated?
The telegram published in the Times appeared in a prominent partof the paper under a full heading in leaded type, and runs thus:
“ Special telegrams for the Times of Ceylon. Copyright. Bysubmarine telegraph (from our own correspondent). (Beeeived20th June, 6 a.m.). Beturn of the second war contingent.Practically disbanded. Forty-nine remain. The main body duesecond week in July. ”
“Cape Town, 19th June, 11.35 a.m. There is an unexpectedchange. The contingent leaves Durban on the 20th instant bythe ss. Englishman.Forty-nine members have been discharged
and remain behind.”
I may add, that in addition to this there was an editorialcomment in the Times referring to the same subject, whichindicated that in all probability the contingent would arrive inColombo about the 10th July.
On the following morning appeared in the Standard newspaperthis paragraph:“ The second Ceylon Contingent – due here on the
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August 4,6,and 11.
10th July. We ..have received information to the effect that thesecond Ceylon contingent who left these shores early last monthfor South Africa will be on their way homeward-bound in a fewdays, and are due here on the 10th proximo. Although the mem-bers of the contingent have had no opportunity of distinguishingthemselves, a hearty welcome back will, no doubt, await them.”
The plaint was founded upon this publication, and without goinginto its terms, because they are set forth in the material section ofthe Ordinance, it is to be noted that the plaint only avers thepublication, and makes no reference to the printing; the wordused is “ published ”. Nor is the word “ wilfully ” employed. Inthe conviction, however, the Magistrate found that the defendanthad wilfully printed and published in the Ceylon Standardthe words complained of. I think that these variances are notmaterial; if they are material, the necessary amendments couldbe made.
The Ordinance is No. 19 of 1898, and the material sectionsare Nos. 1, 2, and 5. The first section provides that ” whenany person publishes in any newspaper published and circulatedin Ceylon any message by electric telegraph from any placeoutside the said Island, lawfully received by such person, noother person shall, without the consent in writing of such first-mentioned person, or his agent thereto lawfully authorized, printor publish or cause to be printed or published, such telegram,or the substance thereof, or any extract therefrom, until after aperiod of forty-eight horns from the time of first publication.”Then follow some further provisions with regard to the periodwhich must elapse from the receipt of telegram before a strangercan use it, and also with regard to the use of any comment uponor reference to the news contained in the telegraphic message inquestion. It is to be observed that the words in that section are. ” print or publish ”, and that the word “ wilfully ” is not used.The section simply prohibits. It mentions certain acts whichwhether wilfully or not, are not to be done. The second sectionruns thus: ” If any person wilfully print and publish, or cause tobe printed and published, any matter contrary to the provisionsof this Ordinance, he shall be liable to a fine not exceedingBs. 100; and every person who is convicted a second time of anyoffence against this Ordinance shall be liable to a fine not exceed-ing Bs. 300.” Now, it is observable that the word “ wilfully ”is used in this section, which is the penal section, and that thephrase is " print and publish,” not “ print or publish.” Apparentlythere has been some slip of the pen or printer’s error, but to mymind it is immaterial whether the word used was ” and ” or “ or ”.
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I would observe, however, before leaving this section, that theword “ offence ” is used, from which I gather that it was the inten-tion of the Legislature that the act complained of should not betreated as giving rise to a purely civil proceeding.
August 4, 6,and 11.
Section 5, provides, amongst other things, that “ proof that anyperson is owner, or is, or is acting, or appears to be acting, aseditor or manager of any newspaper, in which there has been anypublication contrary to the provisions of this Ordinance, shall beprimd facie evidence that such person has wilfully caused suchunlawful publication.” The effect of this to my mind is that theeditor is in this instance presumed to have wilfully caused theunlawful publication; that is to say, the fact of his being theeditor is primd facie evidence that he did so, and it is for him toshow that he did not do what he is charged with. Mr. Dornhorsturged that the meaning of this provision was that the defendant hadto rebut the presumption by some proof such as is required inthe English Libel Act. 6 and 7 Viet., chapter 96, section 7, wherebydefendants are called upon to show that the publication was madewithout their authority or consent or knowledge, and that it didnot arise from want of due care or caution on their part. On theother hand, Mr. Budra urged that the words of section 499 of theIndian Penal Code would better apply, and that it was enough forthe defendant to show that he did not intend to harm, and thathe neither knew nor had reason to believe that the publicationin question would do harm. I think, however, that the Ordinancehas supplied the word which the Legislature considered apt forthe occasion, and to that, as far as possible, I should adhere. Theonus is, in my opinion, on the defendant to show that he did notact wilfully.
The next question is, whether the sub-editor of the paper actedwilfully. The facts are that in the afternoon of the 20th Junethe defendant, according to his practice, left the office of theCeylon Standard at 4.30 p.m., and went to his own rooms,which are within call, leaving the conduct of the newspaper inthe hands of Mr. Staples, his sub-editor. A gentleman named-Van Cuylenburg happened to come into the office shortly after 6,and he stated that he had heard the quartermaster at the Volun-teer headquarters announce to a number of persons that thecontingent was about to sail, and would be back in Ceylon onthe 10th July.Thereupon Mr. Staples wrote the paragraph
complained of. After doing so he glanced at the evening copy ofthe Times, but he says that he did not look at the portion of thepaper where the telegram was printed; that he was busy that,evening, and did not consider it part of his duty to ransack the
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Aujust 5, Paper to find out whether the news he had obtained from Mr.
and 11, van Cuylenburg was there. I am of opinion that, although theMonobeiff, admission made in this case shows that Mr. Staples was anA.C.J. experienced journalist and an honourable man who may be takento have spoken the truth, his conduct under the circumstances -does amount to wilfulness. He knew, he must have known, thatthe Ceylon Standard had been in difficulties on three previousoccasions with regard to the special telegrams of the Times.He knew that the Times was one of the two usual recipientsof such telegrams. He received the information from a casualvisitor to the office, and he not only does not verify the informationby reference to the quartermaster, but he does not even lookat the columns of the Times to see whether the telegramappeared there. And that was done, although the news was.brought into the office after the evening edition of the Timeswas published. It is difficult to enter into the mind of Mr.Staples on this subject. His duties are of a somewhat difficultdescription, calling for a great deal of discretion; but I am ratherdisposed to think that he was under the belief that, having obtainedthe information from a person not connected with the Times,he was justified in putting it in the newspaper without furtherinquiry. I think he was not justified. I think the act waswilful.
Now, was Mr. Wayman responsible for this wilful act of hissub-editor? We had a good deal of discussion on the point. Itwas argued for the complainant that there were caseB in which amaster or proprietor is liable for the criminal act of his deputy,and that this was one of the instances in which the principle ofthose cases should apply. In Mullins v. Collins (9 L. B. Q. B. 292),a publican was convicted under the provisions of a statute withhaving supplied beer to a constable. The aot was committed by a.servant without the. knowledge of his master. The section underwhich the conviction took place has more than one sub-section.The first contains the word “ knowingly the second sub-sectiondoes not contain the word, and it was under that sub-section thatthe conviction was obtained.
Attempts have been, made to explain that decision. On oneoccasion it was said that that judgment only, stated the rule thata principal is liable for the aot of his agent within the scope ofhis authority; but I am inclined to think that, if any good reasoncan be given for it, it was rather that stated by Archibald, J., inthe case, to the effect that- the offence was one against publicorder. The case, however, upon which Mr. Domhorst mainlyrelied was The Queen v. Stephens (35 L. J. Q. B. 201), where
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contractor was found guilty on an indictment for a nuisance 1902.committed by his servants, who had thrown rubbish into a riverJ
and caused an obstruction. On the argument of the rule for a —
new trial, Mr. Justice Blackburn was at pains to explain that he A C ^did not mean to question the general rule that the principal isnot liable for the criminal act of his subordinate. He went onto explain the reason why he thought that the defendant wasproperly found guilty, although he was entirely ignorant of theoffence committed by his servants. He says: “ If the circumstancesunder which he maintains those works are such that for thenuisance an action upon the case would lie by a private person,and if the nuisance includes an injury upon a public right so- that a private action would not lie, but the remedy would be byindictment, the same proof that would prove the nuisance so asto entitle a person to recover in the action would prove the nuis-ance so as to entitle the public to indict.” Mr. Justice Field(Chisholm v. Doulton, 22 Q. B. D. 738) seemed to doubt whetherthat decision was right, and he passed it by, perhaps rather in-sufficiently accounting for it by saying that the Judges regardedit as a civil proceeding.
My impression is, that the root of the decision in The Queenv. Stephens was, and I think Mr. Justice Blackburn partlyadmits it, that the offence was one against public order. Theprinciple, however that the master is not responsible for hisservant’s criminal act, in spite of the decisions quoted, remainsintact. In this case we were not placed entirely upon the basisof that principle, because the word “ wilfully ” enters into thecomposition of the act and, in my opinion, forms an essentialpart of it. The defendant must free himself from the imputationof a blameworthy condition of mind. It seems to me that,on that head, the question is very much what it was in Chisholmv. Doulton, where the liability was qualified by the essentialword “ negligently ”. The word “wilfully”, therefore, beingan essential part of this act, and the defendant not beingresponsible for the wilful act of his sub-editor, the only remain-ing question is whether the defendant has showp,Jhat lie was notguilty of wilfulness. He is admitted to be a man of honour. Hisevidence is accepted as absolutely true. He left his office at4.30 p.u., when the newspaper was – practically made up. Heleft the sub-editor, Mr. Staples, in charge of the office, knowingthat he was an experienced man, whom he could confidentlytrust with the duty of inserting late telegrams. He was withincall in case of emergency, and he. knew nothing whatever of thepublication of this matter.
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1902. If the case had stood there, I should have been disposed toAvgwt 4, s, make the further inference, which wouldhavecompleted his
andll.rebuttal, that he had referredto this subject ontheprevious
Mokobsiw,occasion to his sub-editor, andthat -he hadgivenhimabsolute
A.O.J. instructions upon the subject. Communications must have passedbetween them, hud, in fact, I think that it was the duty of thedefendant, in establishing his innocence, to show that, after whathad occurred on previous occasions, he had given such orders aswould render the repetition of the acts complained of impossible.
Now, unfortunately, Mr. Wayman hasmadestatements in
his evidence which make it impossible todrawthat inference
from his conduct. He saysthat on thefollowingmorning
he made the fullest possibleinquiries. Ithinkhedid not.
True he saw Mr. van Cuylenburg, but he did not apparently seethe quartermaster, or ask him where he got his information.'He says he heard that thequartermasterhadsaidthat he
thought he must have seen it in one of the papers. He does notcommunicate with the proprietors of the Times.and ask them
whether the telegram was theirs. What he does say is that Mr.Staple’s statement was eminently satisfactory.
Now, as I have already said, I do not think Mr. Staple’s expla-nation was eminently satisfactory; and I am sorry to say that,as this is the view which Mr. Wayman took of the duties whichhe had delegated to Mr. Staples, I have no alternative but tocome to the conclusion that he did not give such instructions ashe should have given to his sub-editor, with a view to preventingany recurrence ofthe vexatious acts complained ofbythe
proprietors oftheTimes. He further says that hedidnot
write to the proprietors of the Times because Mr. van Cuylenburg’sexplanation was so satisfactory, and because if a mistake hadbeen made, itwasmade bond fide. This question, hasgiven me
some anxiety,butit seem6 clear to me that if afterthis case
anything of the same kind happened again, the defendant couldnot in a similar evidence pretend that his act was not wilful,because he has given us his impression of what is a bond, fide■ mistake and an “ eminently satisfactory explanation.”
The question which, troubled me was, whether I was justified,on considering the defendant’s evidence, in coming to the con-clusion that he had not taken proper steps to prevent thisoccurrence. I have had considerable hesitation in the matter.In the end, I have come to the conclusion that he did not takethe proper steps, and that he has not rebutted the presumptionthat he wilfully caused the publication complained of. I
I think, therefore, that the order of the Magistrate must stand.
CAPPER v. WAYMAN