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CAPPEB v. SILVA.
P. C., Colombo, 88,442.
Piracy of telegrams—Ordinance No. 19 of 1898, ss. 1 and ■3—Failure to complywith provisions of Ordinance as to manner of publication.
Under section 1 of Ordinance No. 19 of 1898, when any person has, inthe manner mentioned in the Ordinance, published in a newspaper,published and circulated in Ceylon, any message by electric telegraphfrom any place outside the Island, lawfully received by such person, noother person shall, without the consent in writing of such first-mentionedperson, print or publish such telegram, or the substance thereof, or anyextract therefrom, until after a period of forty-eight hours from the timeof first publication.
Held, that where A and B receive the same message by electric tele-graph, B cannot, by non-compliance with the requirements of the Ordinanceas to the manner of publication, or by giving his consent to the publicationof the message by a third party, deprive A of the right of maintaining aprosecution againsj such third party, provided A had in publishing themessage complied with the requirements of the Ordinance as to themanner of publication, and had not consented to the publication of themessage by such third party, and such third party had published thec message within forty-eight hours of its publication by A.
N this case the complainant, the editor of the Times ofGeyfon, prosecuted the accused, the editor of the Sinhalese
newspaper called the Sihala Samaya, for breach of section 1 ofOrdinance No. 19 of 1898. The telegram which the complainantcomplained of as having been pirated by the accused had also been
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published in the Ceylon Standard newspaper before it appeared 1994.in the accused’s paper, but the editor of the Ceylon Standard had September 27failed to comply with the requirements of the Ordinance as to themanner of publication of telegrams necessary to ensure theirprotection under the Ordinance. The accused was convicted bythe Police Magistrate.
The accused appealed.
The case was argued on 26th September, 1904.
Walter Pereira, K.C. (Batuwantudawe with'him), for appel-lant.—Under section 1 of the Ordinance protection can be claimedin respect of such telegrams only as have been published in themanner thereinafter mentioned, that is, in the manner required bysection 3. That section provides that telegraphic messages under.the protection of the Ordinance should be printed under theheading " By Submarine Telegraph,” and should state the dayand hour of their receipt. Now, the Ceylon Standard hadpublished the message without compliance with these require-ments, and as under sectio.n 1 publication of a. telegram is anoffence only when it has already been published in compliancewith the requirements of section 3, it was clearly no offence tocopy this telegram from the Standard, and the defence is thatthe accused copied from that paper. The mere fact that theTimes also published the same news with compliance of therequirements of section 3 makes no difference. Whatever thepractice may be, the two papers must be assumed to have receiveda telegram each containing the same news, and it was competentto one of the two papers, either by consenting to the re-publicationof the telegram received by it or—what amounts to the same thing—by publishing it without compliance of the requirements of section3, to render re-publication of the telegram by another person nooffence under the Ordinance, although the other paper has pub-lished the news with compliance of those requirements. Theremedy is a change of the system, or the conditions under whichtelegrams are distributed by the same agent or two or more news-papers, Tather than a prosecution of this sort. •
Domhorst, K.C., for respondent.—The non-observance of therequirements of the Ordinance by the Standard could not. a|fect-the rights of the Times. The same telegram was received by thetwo- papers. The Times published it with compliance of»theprovisions of section 3, and while the Standard by infringingthose provisions deprived itself of the right to maintain a prose-cution for piracy, it could not prejudice the Times by suchinfringenaent.
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27th September, 1904. Moncreiff, A.C.J.—
This is a -prosecution under section 2 of Ordinance No. 19of 1898. The complainant had published on the 25th and 26thMay, 1904, a message by electric telegraph in the Times ofCeylon, lawfully received from London on the 24th and 25th daysof May. The publication took place “ in the manner hereinaftermentioned, ” as the 1st section of the Ordinance puts it. Thecomplainant complains that one of the messages which appearedin the Times on the 25th of May, and which I may say wasalso published in the Standard on the 26th, was made use ofby the defendant in the issue of the paper named the SihalaSamaya, which was published, I understand, on the 26th Mayat Colombo. The complainant, says that the defendant had noconsent from him for' doing this, and that his publication tookplace within sixty hours of’ the receipt of the telegram, .and beforeforty-eight hours had elapsed from the time of its first publication.If that was done wilfully, there was apparently a breach of theprovisions of the Ordinance. Section 5 of the. Ordinance’ .pro-vides for the receipt of evidence which shall be consideredprimd facie evidence that a message such as is contemplatedhas been published as described in the Ordinance.
According to section 3, telegraphic messages which are underthe protectionof theOrdinanceareto be printed under the
heading “ By Submarine Telegraph,” and are to state the day andhour of theirreceipt.The defendanthas set up a number of
defences, which may be stated together. He says that, so long asit cannot be proved that he took the publication which appearedin his paper from the columns of the Times, he is not liable.He says he did not take it from the Times, but that he tookit from the Standard, and that the Standard published thetelegrams—I take, for example, the telegram from London dated
May 24, beginning “ General Kuroki reports that ”He. says
that he did not take that from the Times but from the Standardand the Standard, in publishing this message on the 26th ofMay, did notaffix theheading “BySubmarine Telegraph,” and
did not statethe dateand hourof the receipt of the telegram.
He says also that he had the permission of the Standard topublish these telegrams, but that is not true. A letter is fileddated 25th of February, 1904, in which the defendant addressingRenter’s Telegram Company says that he has ceased publishingtelegrams from the dailies as they had withdrawn their permissionto do so. It was argued, however, that the defendant coulll notknow when he found the message in question in the Standardthat it was an item which he was not entitled to use. It may be
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that the Standard by omitting the heading and date iheant to intimate 1904-that it would not complain of the use of such messages September 21.by other people, but that intimation -would only be effective so Monokeipi-,far as to deprive the Standard of any power to complain ofA.C.J.
the use of the messages. As a matter of fact the message appearedunder the heading of “ Reuter, ” and therefore the defendant hadsufficient intimation that this was a message of the kind referredto in the Ordinance of 1898. As to the argument that, if there isno proof that this message was taken from the Times, no. offencehad been committed, if that were a sound argument it would bequite possible for a person, obtaining the contents of a telegrambefore it was communicated to the Times and 'other subscribers,to make us of it with impunity. In fact, this message was madeuse of before the complainant had published it; but my inter-pretation of the 1st section is that it is immaterial whether themessage was made use of improperly before or after its publica-tion in the journal which complains. I think that the period ofsixty hours was allowed partly for the purpose of permittingjournals to have time to make use of those messages, and that theobject of the Ordinance, which is to secure the right of propertyin telegraphic press messages, would be defeated if those messagescould be lawfully made use of by other persons before publicationby the subscribing parties. But my impression, it seems to me, isstrengthened by the words of section 1, because, in speaking ofthe, publication by the complainant it uses the expression “ anymessage by electric telegraph,” and the act guarded against is thepublication of the ' “ telegrams. ” I think that the differencebetween the expressions is due to an intention that the telegramshould be distinct from the actual message which is received byeach individual subscriber. It was urged by Mr. Pereira that ifthis was the correct view, the moment that a subscriber- had gotone of those telegrams it could not be published by anothersubscriber without infringing the Ordinance, I think, however,that it is only reasonable to believe that where there is publicationby one of the subscribers who has lawfully received the message,there can bo no infringement of the Ordinance in the publicationof the same telegram by another subscriber who had lawfullyreceived the message.
I think that this appeal fails, and that iJhe conviction shouldbe affirmed.
2J. X.B 6920 (4 51 '
CAPPER v. SILVA