look at the entire reports and take the word “ mone*- ”
“ money ”. One must however
they each used the word
SAMAKAJECOON, G'.J.—Independent Newspapers Ltd. v. de Mel
presumption of animus injuriandi could be displaced by anyevidence which on (sic) probability showed that the intentionto injure was absent. ” Asked to clarify, he contended that proofof absence of animus injuriandi simpliciter absolved the defen-dant from liability. This being the Roman Dutch Law he statedthe learned Judge could have found absence of animus if hedirected his mind to the following facts : —
I quote him :—
“ (a) The news item was a complete false account of a non-existent Court case. It is inconceivable that any news-paper would have concocted a non-existent Court case.The falsity of the report would be exposed in a matterof days, leading to the complete discomfitureembarrassment and culpability of the paper. ”
" (b) It is the only unchallenged evidence in this case thatthe news item appeared in the ‘ Observer ’ of the 29thFebruary and was copied from it into the 1st Marcheditions of the ‘ Sun ’, ‘ Davasa ’ and ‘ Savasa ’. Abey-wickreme was called for purpose of producing D4.During his cross-examination it was elicited by Courtthat one of the reporters had copied the articles fromthe ‘ Ceylon Observer ’ and sent it to the News Desk.Had it been anything but the report of a Court casethere would be inadvertence. But if a prominent legalluminary of Hulftsdorp was fooled by the apparentauthenticity of the report how could one blame areporter. ”
“ (c) When the matter was brought to the notice, of thedefendant a full and complete retraction and anapology was published in banner headlines on page 1 ofthe papers of the 4th March. ”
“ (d) The defendant further offered to publish anything theplaintiff wanted but the offer was ignored. This mustbe regarded as an admission that the Plaintiff knew
SAMARAK.OON, C. J.—1 adapt,ident Newspapers Lid. v. do iMel07
that the harm done to his good name had been undone
without any further, publicity. ” .
I cannot agree with this contention. All injurious words arepresumed to be false and newspapers have been known to concoctnon-existent facts. Unfortunately too many readers are inclinedto accept newspaper reports without question. It is wrong to saythat evidence of copy from the “ Observer ” was unchallenged.Abeywickreme, the sole witness for the defence stated that “ ithad been copied from a report which appeared in the “ CeylonObserver ”, but there was no proof of this fact. The “ Observer ”was not produced. The learned Judge’s affirmative answer toissues 2, 7 and 12 that these reports were fabricated by theappellant means that the evidence of Abeywickreme has beenrejected. Retraction and offer to publish further, as set out in
above, is the normal conduct of a newspaper when it findsthat what it believed to be true has turned out to be false. Inany event how does one prove the absence of animus injuriandisimpliciter ? It is a mental element and cannot be proved subjec-tively. The Roman Dutch Law therefore looks at it objectively.When the plaintiff has established that the words are defamatoryof him per se and/or by innuendo animus injuriandi is presumedbecause a man is taken to intend the natural consequences ofhis act. “ Animus injuriandi being a state of mind has in thegenerality of cases to be inferred from the words and the occasionon which and the context and circumstances in which they areused. ” De Costa v. Times of Ceylon, 65 N.L.R. 217 P.C. at 224.Fradd v. Jacquelin, (1882) 3 Natal Reports 144, Perera v.Peiris, 50 N.L.R. 145, Associated Newspapers of Ceylon Ltd. v.Gunasekera, 53 N.L.R. 431. Once presumed the burden ofrebutting the presumption is shifted to the defence. He cannotdo this by merely stating that in his own mind he had or couldnot have had in intention to injure. Cassidy v. Daily MirrorNewspapers Ltd. 141 L.T. 404 at 410. He can only do this byone of the specific defences known to the Roman Dutch Law.(Law of Defamation in South Africa by Nathan, page 87). “InRoman Dutch Law animus injuriandi is an essential element inproceedings for defamation. Where the words used are defama-
030A3IAKAKOOi, C.O.—UjulspeivJdm dxbicspapera Lid. v. de Jlci
tory of the complainant, the burden of negativing animus injuri-anai rests upon the defendant. The course of development ofRoman Dutch Law in Ceylon has, put broadly, been to recogniseas defences those matters which under the inapt name of privilegeand the apt name of fair comment have in the course of thehistory of the common law come to be recognised as affordingdefences to proceedings for defamation. But it must be emphasisedthat those defences or, more accurately, the' principles whichunderlie them, find their technical setting in Roman Dutch Lawas matters relevant to negativing animus injuriandi. In thatsetting they are perhaps capable of a wider scope tharf thataccorded to them by the common law. ” per Lord Uthwatt inPerera v. Pieris, 50 N.L.R. 145 at 158. Counsel for the appellantstated that the Roman Dutch Law does not restrict the defendantto the four defences referred to by the Privy Council in thiscase. There are others. Nathan refers also to insanity, minority,jest, rixa and mistake. Absence of animus injuriandi simpliciteris not one of the defences mentioned. It is interesting to notethat the appellant, although it pleaded bona fide mistake as itsdefence, made no attempt to establish it. In fact no issue wasraised in the District Court by the appellant on this plea. Inappeal counsel contended that rhe newspapers were victims ofa hoax but there was no evidence led to support this. Theappellant has failed to discharge the burden that the law castupon it.
The learned Judge in awarding damages has assessed Rs. 10,000for the “ Sun ”, Rs. 10,000 for the “ Dawasa ” and Rs. 5,000 forthe “ Sawasa ”. The appellant states that there was a promptand complete retraction. Such there was. But it is quite a differentthing to say that no damages could be awarded. An apology isnot in itself an absolute defence nor is it a complete and sufficientrecompense for damage already caused. It may however beconsidered as a factor in mitigation. The “ Sun ” and “ Dawasa ”carried unqualified apologies but the “Sawasa” qualified itsapology by prefacing it with the word “ if ”. The learned Judgehas agreed with Dr. Colvin R. de Silva “ that some mud wouldstick. ” Neither the witness ncr the Judge adduced reasons for
GI7NASEEEKA.. 7. —Sehar.ayagom v. SeUammah69
this opinion which must necessarily be based on a rejection ofthe unqualified apology. It would be more correct to state thatsome hurt and pain of mind would linger even after the retraction.The respondent is a public man and a member -of the country’slegislature. He has sacrificed a promising career in the StateService to serve the people in the way he thought best. Thelearned Judge has characterised him as a person of integrityand high principles. Such a man has been defamed by fabrica-tions. The “ Sun ” being an English newspaper reaches a smallbut influential section of the public. The respondent’s Uncontra-dicted evidence was that theDawasa ” was popular in hiselectorate, Devinuwara, and that it was extremely popular inthe South. The publications in the “ Dawasa and “ Sawasa ”therefore succeeded in reaching a reader and an area whichwould hurt the respondent most. The respondent has filed cross-objections against the quantum of damages -awarded to him. Inmy view the amount awarded is inadequate. While not interfer-ing with the award cf Rs. 10.330 in respect of the “ Sun ” I wouldincrease the award in respect of the “Dawasa” to Rs 25,000 andthe “ Sawasa ” to Rs. 20,000. In the result I award the respondenta total sum of Rs- 55,030 without costs of appeal. The defendant-appellant’s appeal is dismissed with costs.
Weerahatne, J.—I agree.
Sharvananda, J.—I agree.
Appeal dismissed.
Ai.oc.rd of damages enhanced •on cross-appealof plaintiff-respondent.