Defamation—Privileged communication—Malice—Animus injuriandi.
OnC’srecommendation. Hipdefendant offered (he post of
assistant superintendent to the plaintiff. Subsequently thedefendant ascertainedthatthe plaintiff’s 'father was aman ' of
German birth, who had become a naturalized British subject, anddefendant withdrew the offer, and also wrote to C explaining hisconduct. The letter contained the following passage: ’ “ Why onearth didn’t you tell me Gulick was half a German, indeed threeparts a German? IgrantI should haveaskedyou, butit never
occurred to me that there wouldbe any loose Germans about
these days.”
The District Judge held that- the defendant, meant by the wordscomplained of that the plaintiff was an alien enemy and sMuld.have been interned, and that the words were defamatory.
1 {1898) J A. C. R. 72.1 2 (1913) 16 N. L. R. 463.
2 2 Matara Cases 36.4 (1911) 14 N. L. R. 177.
( 177' )
Heldtthat the occasionof the*letterto (‘ was aprmlogtMl mtf,
and however defamatory against plaintiff, the expressions contained iuthe letter may be considered to bo, the}* are not actionable underthe circumstances in whichthey were written,without proof of
actual malice.
When the occasion is a privileged one. the presumption of maliceis rebutted, and it lies on the plaiutiff to prove actual malice, andthis is not done by merely proving the words to have been untrue,or eventhatthe words usedwerestronger thantheoccasion
required.It isnecessaryto showthatthe state ofmindof the
defendant was malicious “ This state of mind may be
proved in various ways:by showing personal animosity on the
part of the defendant against the plaintiff ; by showing that thedefendantknewthat thestatements made were untrue:byshowing
that the statements were so reckless that the plaintiff could hovehad no bona fide belief in their truth, and even by the defendantpersisting in the truth of the statements at the trial when he knewof their untruth, but not, from the mere fact that the words weretoo strong."
*T HE facts are set out in the judgment.
Quliok »*'.Green
H. ././Vrera. for appellant.
A. St. V. Jayawardene. for respondent.
Cur. adv. milt.
March 19, 1918. Shaw J.—
This is a claim for damages for defamation arising in the followingcircumstances.
The defendant, Mr. L. B. Green, is the superintendent of St.Andrews estate, Talawakele, and manager of. Ferham estate. Inthe month of April, 1917, the post of assistant superintendent ofFerham was shortly falling vacant, in consequence of the thenassistant superintendent, Mr. Blackmore, being /about- to leave theIsland on war service, and Mr. C'urtois, the superintendent ofKottagallakelle estate and a friend of the defendant, approachedMr. Green with the object of obtaining the post for the plaintiff,Mr. Gulick, who was at the time employed as assistant superintendentat Kottagallakelle under Mr. Curtois.
In consequence of the recommendation of Mr. Curtois. the .defendant on April 24 wrote to Mr. Gulick offering him the post,subject to the approval of the Colombo agents, and on May 4 heagain wrote informing Mr. Gulick that the agents had. approvedthe appointment, and he asked Mr. Gulick to meet him on thefollowing Tuesday at the Ferham bungalow to discuss, matters.Up to this time the plaintiff and the defendant- had not beenpersonally acquainted with each other.
At the interview so arranged Mr. Green ascertained for the first-time that Mr. Gulick’s father was a man of German birth, who hadbecome a naturalized British subject, and this fact appears to have
( 178 )
Shaw J,
Qulich VmOrem
entirely changed Mr. Green’s Views as to the desirability of Mr.Gulick filling the Ferham post, and he accordingly wrote to himthe same day withdrawing the offer. The terms of the letter areof some importance, as showing the defendant’s state of mind atthe time. I accordingly quote it in full: —
St. Andrews,
Talawakele, May 8, 1917.
Dear Gtilick,—I have been very troubled in mind since our meetingtoday. You will guess at once that it is about your parentage.
When I wrote to you about the Ferham billet, I had no idea you wereof German origin.Curtois never toldmea word aboutit, and it never
occurred to me to ask.
As soon as I was aware of the fact, I thought at once, as I had offeredyou the billet, theoffer must stand,andI therefore said nothingto you
during the afternoon, ^ut the more' I think of it theplainer itappears
to me that I have acted wrongly, and I must take back my word. AsI see things now, it seems to me impossible that while Blackmore hasgone to fight the German’s I should give his place to the son of a German.
1 am deeply sorry that I did not make more careful inquiries beforehand,and in this 1 am much to blame; but- in the light of this fresh knowledge,I must beg you to understand that the offer of Ferham billet is herebydefinitely withdrawn.
I fully realize how this letter must make you1 feel, and believe me, Iam sincerely sorry,and' if you wishtospeak to mepersonally,I will
meet you and listen to anything you may have to say.
Yours truly,
Jj. B. Green.
On the following day the defendant wrote to-Mr. Curtois thefollowing letter, which contains the alleged defamatory statements,in respect of which the action is brought: —
St. Andrews,
Talawakele^ May 9, 1917.
My dear Curtois—Why on earth didn’t you tell me Gulick washalf a German, indeed three parts a German? 1 grant you I shouldhave asked you, . but it ’ never occurred to me that there would be anyloose Germans about these days.
You have put me in the horrid position of having offered a billet tothe man, and having to retract my offer afterwards, a beastly thing todo, but I cannot possibly give him Ferham. Just think of it! Black,more gone to fight the Germans, and I go and put the son of a Germanfather in his place t It simply cant’t be done, and I have written totell Gulick so as nicely as I can.
Poor devil, he can’t help his parentage, and he seems a decent enoughchap.
Yours sincerely,
L. B. Green.
The plaint alleges that the defendant meant by the words com-plained of that the plaintiff was an 'alien enemy, to wit, a German,and that the plaintiff, a-s such alien enemy, ought to be interned, asbeing a dangerous person to be at liberty in Ceylon in war time.
( 179 )
The Judge has- held that the words are defamatory, and bear the *918.innuendoes put upon them by the plaintiff, and that although the Shaw J.occasion of the letter to Mr. Curtois was a privileged one, theg^ickv
defendant exceeded the privilege, and must be held to have written green 'the words maliciously, with intent to injure the plaintiff. He hasassessed the damages at Bs. 500, and given judgment for thatamount, with costs in the class of the judgment.
The defendant appeals, and the plaintiff has also given a cross-notice of objection on the ground that the damages awarded are,insufficient.
I see no reason to differ from the finding of the Judge that thewords complained of are defamatory and bear the meaning imputedto them by the plaintiff, but the view I have come to on the questionof privilege makes it unnecessary for me to go into this question indetail. The occasion of the letter to Mr. Curtois was, in my opinion,clearly a privileged one, and any words used by the defendant inthat letter bone fide for the purpose of the communication andwithout actual malice can give the plaintiff no cause of action,however defamatory they may be.
The English law is stated in the judgment of Lord Campbell C.J.in Harrison v. Bush1:“A communication made bona fide upon
any subject-matter in which the party communicating has aninterest, or in reference to which he has a duty, is privileged if madeto a person having a corresponding interest or duty, although itcontain criminatory matter, which without the privilege would beslanderous and actionable.” This statement of the law has been
accepted ever since, and it will be found repeated in almost identicalterms in the judgment of Lord Esher M.B. in Hunt v. Gt. N. Ry.' Co.2
In the present case Mr. Curtois had applied to the defendant for,and had been instrumental in obtaining for the plaintiff, the promiseof the post of assistant superintendent of Ferham estate. In fact,the negotiations for the appointment had been entirely betweenMr. Curtois and the defendant until the plaintiff wrote to thedefendant on April 22 saying:“ Curtois has told me that you
have been good enough to offer me the billet of assistant at Ferhamat Bs. 250 per month, which I herewith have pleasure in accepting.”
The defendant had, therefore, clearly an interest in communicatingto Mr. Curtois the reasons that had led him to go back on the offerhe had made, and decline to allow the plaintiff to occupy the post.
Mr. Curtois had also a corresponding interest to know why the offerhe had obtained had been withdrawn, and, 'indeed, he stated in hisevidence that he expected an explanation why the plaintiff was notgiven the post.
But although the communication was privileged, the defendantwould not be absolved from liability for defamatory matter inserted
1 (1855) 5E.& B., at page 364.2 (1891) 2 Q. B. 189.
( 180 )
Shaw J.
GuUck o.Green
into it maliciously, or not bone fide for the purposes of the com-munication that he was entitled to make to Mr. Curtois.
There appears to me to be very little difference between theEnglish and Roman-Dutch law relating to the proof of “ maliceor “ animus injuriandi ” in actions for defamation, and suchdifference us there is docs not affect the particular circumstances ofthe present case.
Although “malice” on the part. of the defendant has alwaysnominally been ah ingredient to actional defamation under theEnglish law. it has long ceased so to be in fact, and, in the absenceof privilege, the mere proof that the words are false and defamatoryconstitutes irrebuttable proof of malice in law, and the defendant’sintention or motive in using the words is immaterial, if he has,in fact, wrongfully injured the plaintiff’s reputation (Hooper v.Truscott 1), and even the fact that the jury have expressly found inthe defendant’s favour that he had no malicious intent will notavail him (Maule J. in Wenman v. Ash.3). The word “malice”used in this connection has been described as “ unfortunate ” inmany decisions (see per Lord Bramwell in Abrath v. N. E. Ry. Co.3),and now merely denotes the absence of lawful excuse (see. Odgers,4th edition, p. 32).
In Roman-Dutch law also the ” animus injuriandi ” is nominallyan essential ingredient of defamation, but just as “ malice ” in theEnglish law of defamation has lost its definite meaning, so the“ animus injuriandi ” of the Roman-Dutch law seems in its practicedapplication to be reduced to' something' far short of the intentionor desire to injure (see Morice on English and Roman-Dutch Law252).
What difference there is in the two systems of jurisprudence isthus stated by Sir Henry de Villiers in Botha v. Brink 4 : “ The ruleof the Roman-Dutch law differs, if at all, from that of the Englishlaw in allowing greater latitude in disproving malice. Under bothsystems the mere use of defamatory words affords presumptiveproof of malice, but under our law, as I understand it, the presump-tion may be rebutted, not only by the fact that the communicationwas a privileged one, in which case express malice must be proved,but by such other circumstances (examples of which are given inVoet 47, 10, 20) as satisfy the Court that the ‘ animus injuriandi ’did not exist.”
When, therefore, the occasion is a privileged one, under both'systems the presumption of malice, or “ animus injuriandi ” isrebutted, and it lies upon the plaintiff to prove actual malice, andthis is not done by merely proving the words to have been untrue,or even that the words used were stronger than the occasion required.It is necessary to show that the state of mind of the defendant was
1 {1836) 2 Scott 672.3 (1886) 11 A. C. 253.
(1853) 13 C. B. 815.4 8 Buck. 128.
( 181 )
malicious. To quote the words of Coleridge J. in Harrison v. Bush l:
As the occasion privileged thfe'publication, the plaintiff had to giveevidence of express malice. To do this he was entitled to provethat the allegations in the libel were untrue. I do not say that themere fact of the- falsehood of the allegations would prove expressmalice. I agree that the material question was as to the state ofthe defendant's mind."
The law is also very clearly laid down by Lord Esher M.R. inNevtll v. Fine Arts and General Insurance Company “ For a verylong time past Judges have over and over again directed juriesthat the defence that the occasion was privileged can only be rebuttedby showing that the defendant in using the privileged occasion hasused it with actual malice, or 1 express ’ malice as it has* been some-times called. Exception has been taken to the latter term; but Ithink that the Judges using it have always explained its meaningto the jury by telling them in substance that there must have beenactual malice, which is a state of mind."
This state of mind may be proved in various ways: by showing .personal animosity on the part of the defendant against the plaintiff;by showing that the defendant knew that the statements madewere untrue; by showing that the statements were so reckless thatthe plaintiff could have had no bona fide belief in their truth, andeven by the defendant persisting in the truth of the statements atthe trial when he knew of their untruth, but not from the mere factthat the words used were too strong (see Lopis L.J. in Nevill v.Fine Arts and General Insurance Company, at page 170).
In the present case the Judge has found that although the Occasionwas a privileged one. the expression in the defendants letter; “ Itnever occurred to me that there would be any loose Germans aboutthese days,*’ being unnecessary for the purpose for which the letterwas written, was not privileged, and that the words amounting to a° careless " statement, they came within the decision of Pereira J.in David v. Bell* and showed “ animus injuriandi." He alsothought that a subsequent letter (P 9) written by the- defendantto his Colombo agents established the existence of “ animusinjuriandi
I am unable to agree with the Judge. The communication wasmade by the defendant to Mr. Curtois to explain why he had firstpromised the post to the plaintiff afid afterwards had withdrawn hisoffer, and he was entitled to tell Mr. Curtois what had influencedhis conduct, however defamatory to the plaintiff the explanationmight be, and the statement that “ it never occurred to me thatthere would be any loose Germans about these days " was for thepurpose of explaining how he had come to promise Mr. Curtois tooffer the post to the plaintiff.
'5 E. B. 344, at page 364.8 (1895) 2 Q. B. 156, at page 169.
8 (1913) 16 N. L. R. 318.
wShaw J
Qulick vGreen
( 182 )
Shaw J.
Gulick v-Green
1 do not think that Pereira J. intended to lay down in David v.BeU,1 that a “ careless ” statement “would show actual malice whenmade on a privileged occasion; any such ruling would be in conflictwith the authorities I have already referred to.
The letter referred to by the Judge as showing “ animus injuriandi ”is as follows: —
St. Andrews, Talawakele.
Messrs. Mackwood & Co.
Dear Sirs,—Referring to my last letter to you re Mr. Gulick, inwhich I told you he is the son of a German father, I feel it only fair tohim to say (lest by any chance you should get a wrong impression) thathe and all his family, so far as I am able to discover, are thoroughlyBritish in sympathies, and his wife is English.
I should be much obliged if you will' not mention to any one in thecourse of business or conversation what you know of his parentage, asit neigh)/ possibly prejudice his chances of getting a billet with anotherfirm.
Tours faithfully,
L. B. Gbbbn.
I cannot see that this letter shows any malice. In fact, it seemsto me to show just the reverse. It may, indeed, show that thewriter thought that some previous letter of his concerning theplaintiff may have been defamatory, but not that he himself hadbeen actuated by malicious motives.
The conduct of the defendant throughout seems to me to showclearly that his letter to Mr. Curtois was influenced by no feelingsof malice towards Mr. Gulick personally. He appears to .be. aperson who has a very strong antipathy to anything or any oneof German origin, however remote. The expressions in his letter,however unreasonable we may consider them when applied to theplaintiff, are not actionable when contained in the privileged letter,if they, in fact,- express the /true motives that actuated him' in thematter. In fact, Mr. Gulick’s father, although a German by birth,becaine a naturalized British subject so long ago as 1868, and beforethe plaintiff’s birth, and the plaintiff, who was educated in England,appears to have entire British sympathies, and to have the samefeelings of loyalty towards the Empire as any other British subject.However unreasonable we may think the defendant’s attitudetowards him may have been, and however defamatory against himthe expressions contained in the letter may be considered to be,they are not actionable under the circumstances in which they werewritten, without proof of actual malice, which, in my opinion, hasnot been established by the evidence given in the case.
The defendant is, therefore, entitled to judgment in the action. Iwould accordingly allow the appeal, with costs.
Enkis J.—I agree.
1 (1913) 16 N. L. R. 318.
Set aside