THE INDEPENDENT NEWSPAPERS LTD. v. DEVADASA

044-SLLR-SLLR-1983-2-THE-INDEPENDENT-NEWSPAPERS-LTD.-v.-DEVADASA.pdf


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The Independent Newspapers Ltd. v. Devadasa
505
THE INDEPENDENT NEWSPAPERS LTD.
v.DEVADASA
COURT OF APPEAL
TAMBIAH. J. AND L. H. DE ALWIS. J.
C.A. 398/71 (F)
D C. COLOMBO 5520324. 25 NOVEMBER 1982 AND
2 AND 3 DECEMBER 1982
Defamation — Innuendo — Qualified privilege.
The plaintiff Devadasa was the Vice-President of the Ceylon Railway Daily PaidWorkers Benevolent Association counting a membership of 5000. Thedefendant newspaper published an article which carried the innuendo that theAssociation was responsible for several irregularities and a fraud of several lakhsbelonging to the Association, that the office-bearers were evading thesummoning of a meeting where a vote of no confidence could be passed despitea requisition for such meeting by over 2000 members, excessive interest wasbeing levied from members and members who opposed the office-bearers wereharassed.
Held —
Defamation consists in the publication of defamatory matter concerning anotherwithout lawful justification or excuse. A defamatory statement is one whichtends to diminish the esteem in which the person to whom it refers is held byothers, as for example by holding him up for ridicule or contempt.
Although the alleged defamatory paragraph taken individually may not bear adefamatory meaning, the article must be read as a whole in order to extract itstrue meaning.
The question whether the article as a whole is capable of a defamatory meaningfirst of all in its natural and ordinary sense is a matter for the Court to determine,looked at from the standpoint of reasonable men or men of ordinary andaverage intelligence, to whom it is published.
When the test of how reasonable men would have understood the article isapplied to it. the correct conclusion would be that the article as a whole isdefamatory of the office-bearers.
It is an essential element of defamation that the words complained of should bepublished of the plaintiff. Where he is not named the test of this is whether thewords would reasonably lead people aquainted with him to the conclusion
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that he was the person referred to. The question whether they did so in fact doesnot arise if they cannot in law be regarded as capable of referring to him. If adefamatory statement made of a class or group can reasonably be understoodto refer to every member of it, each one has a cause of action.
The article was defamatory of every one of the office-bearers of the associationand the respondent (Devadasa) being one of them, could sue. There wasextrinsic evidence of witnesses who understood the article as referring to theoffice-bearers.
There was an allegation that there was a fraud committed by the office-bearersrunning into about 4 lakhs of rupees and that the profits of the association hadnot been properly shown in the administration report.
It is not necessary that the defendant should be under a legal duty to make thecommunication. It is sufficient that he is under a moral or social duty to make it.The person to whom the communication is made must have a similar duty or alegitimate interest to receive it. This reciprocity is essential. If it is fairly made bya person in the discharge of some public or private duty, whether legal or moralor in the conduct of his own affairs in matters where his interest is concerned,the occasion prevents the inference of malice which the law draws fromunauthorised communication and affords a qualified defence depending on theabsence of actual malice.
In the present case there was no evidence of malice or animosity.
Would the great mass of right-minded men in the position of the defendant haveconsidered it their duty to speak ? The test is objective not subjective. Thequestion is not whether the defendant believed that a duty existed but whether aduty in fact existed.
In the present case there was no legal duty cast on the defendant to publish thearticle. Nor was there a moral or social duty. The news item may at the mosthave been of interest to the members of the association. The general public,consisting of the readers of the newspapers to whom it was published wouldcertainly have no interest in the affairs of this insignificant society.
Cases referred to :
Stewart Printing Co. (Pty) Ltd. v. Conray 1948(2) SALR 707
Lewis and another v. Daily Telegraph Ltd., and Lewis and another v.Associated Newspapers Ltd. 1962 2 All ER 698 (H. L. (1963) 2 All ER 151).
Levy v. Moltke 1 93 4 E.D.L. 269, 31 5
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The Independent Newspapers Ltd. v. Devadasa (L. H. deAlwis. J.)
507
Kunupffer v. London Express Newspaper Ltd. (1944) AC 116. (1944) 1 AllER 295
Toogood v. Spyring 1834 I.C.M. and R. 193
Adam v. Ward (1917) AC 334.
Stuart v. Bell (189112QB341.
Perera v. Petris 50 NLR 145. 158 (P.C.)
Champman v. Ellesmere and another 1932 (Reprint) All ER 221.
Webb v. Times Publishing Co. Ltd. (1960) 2 All ER 789.
APPEAL from judgment of the District Judge of Colombo.
L. de Silva. S.A. with Nirmal Fernando for 1 st Defendant-Appellant
C. Ftenganathan, Q.C. with J. V. M. Fernando and C. Logasunderam forPlaintiff-Respondent.
Cur. adv. vult
25th February 1983L. H. DE ALWIS. J.
The appellant is a Company incorporated under the provisionsof Ordinance No. 51 of 1938. and is the proprietor of aSinhalese Newspaper called the " Davasa ". The Respondent, atthe material time, was the Vice-President of the Ceylon RailwayDaily Paid Workers' Benevolent Association.
The respondent sued the 1 st Defendant-Appellant and the 2nddefendant, who was the Editor of the " Davasa " newspaper, fordamages in a sum of Rs. 30,000/- in respect of the publicationof a defamatory article concerning him in the " Davasa"newspaper of 3rd October 1961. The appellant and the 2nddefendant filed answer admitting the publication of the article inquestion, but denied that it was of a defamatory nature per se. orby reason of an extended meaning (innuendo), and raised thedefences of justification, fair comment and privilege.
The learned District Judge after trial held that the article readas a whole was defamatory of the respondent, both by reason ofits ordinary meaning and in its extended meaning, and that the
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defences taken up must fail. He awarded the respondent a sumof Rs. 7,500/- as damages and it is from this judgment that the1 st Defendant-Appellant now appeals.
At the hearing of the appeal. Learned Counsel for theappellant, submitted that the article was not defamatory of therespondent either per se or in an extended meaning andconfined his defences only to that of qualified privilege which hesubmitted was wrongly rejected by the learned District Judge.
The offending article in the " Davasa " newspaper as translatedinto English is reproduced in paragraphs 4 and 5 of theamended plaint marked Pla 1 to Pla 10, as follows
"A Fraud of Funds in Lakhs in the Benevolent Association."(The mark of interrogation in the original Sinhala article, hasbeen omitted after the word " Association "). The translation thengoes on to say
" From staff Reporter D. C. Satarasinghe.
Pla 1 A petition containing the signatures of a large number ofmembers has been sent to the M.P.s, Ministers andofficials including the Prime Minister requesting aninquiry into a fraud involving several lakhs and also intoirregularities in the Railway Benevolent Associationfounded in 1946 having a fund of forty lakhs of rupeesand a membership of five thousand. But there has beenno outcome so far.
Pla 2 The Government Railway Daily Paid Employees’Benevolent Association was inaugurated in 1956.
Pla 3 It is revealed in a communication addressed to themembers by the General Treasury that the chiefimpediment to this is the fact that this association has notbeen registered so far.
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The Independent Newspapers Ltd. v. Oevadasa (L. H. de Alwis. J.)
S09
Pla 4 In reply to a letter addressed to the Ministry ofCommunication and Transport on the said irregularitiesthe association has received only a letter stating that thematter would be looked into immediately.
Pla 5 It is also stated in that reply that a letter sent to theMinister of Finance had been forwarded to the Minister ofNationalised Services and Labour, who has referred it tothe Commissioner of Labour.
Pla 6 While a sum of four rupees is recovered from eachmember from his monthly wages, interest at the rate of1 2 per centum is also charged. It is said that although theTreasury has notified the Secretary that it is illegal tocharge this interest, the interest continues to be chargedin the same manner.
Pla 7 Since it has been provided in the constitution of theassociation that if a member resigns he would forfeit thesums he has contributed up to that time, the membersare helpless and undecided as to what they could do.
Pla 8 Even the net profits earned by this association whichreceives membership subscriptions of such magnitudeand also interest, has not been properly shown in theadministration report.
Pla 9 Though a requisition signed by over two thousandmembers for a general meeting stating that they have noconfidence in the office-bearers has been submitted, theoffice-bearers have not paid any heed to it.
Pla 10 It is understood that the members who are activelyinterested in this matter are being harassed by the office-bearers ".
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In paragraph 8 of the amended plaint the respondent furtherpleaded that the headlines and the article, reproduced above,carried an innuendo :—
" (a) that the plaintiff as an office-bearer of the saidassociation with and among other office-bearers, wasresponsible for several irregularities and a fraud of severallakhs of rupees belonging to the said association.
that with a view of preventing the matters of fraud andother irregularities being discussed, the plaintiff with andamong other office-bearers failed to summon a meetingalthough requested to do so by a requisition signed by overtwo thousand members.
That the plaintiff with and among other office-bearershas been dishonest in improperly charging excessive andillegal interest from members, and in not correctly settingout the financial position of the association in itsadministration report.
that the plaintiff with and among other office-bearerswith a view to concealing and persisting in these fraudsharassed members who oppose him, and is taking unfairadvantage of the position that members cannot resign fromthe association without forfeiting their contributions ".
Defamation consists in the publication of defamatory matterconcerning another without lawful justification or excuse. Adefamatory statement is one which tends to diminish the esteemin which the person to whom it refers is held by others, as forexample by holding him up to ridicule or contempt. McKerren,The Law of Delict. 6th Edition page 160.
In the present case the printing and publication of the article inthe ” Davasa" newspaper of 3.10.61 is admitted by theappellant but it was contended by his Counsel at the hearing of
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The Independent Newspapers Ltd. v. Oevadasa (L. H. deAlwis. J.j
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the appeal that the article does not refer to the respondent and isnot defamatory of him or bear the secondary meaning alleged byhim in paragraphs 8(a) to (d) of the answer. Counsel also reliedon the defence that the publication of the article was privileged.
The article carries the heading " A Fraud of Funds in Lakhs inthe Benevolent Association " with a question mark at the end.although the translation does not show the mark of interrogation.Learned Counsel for the appellant submitted that the title is notan assertion of fact but. as the question mark indicates, onlyraises a suspicion about an alleged fraud. He further submittedthat in paragraph Pla 6 of the article, the allegation is merely thatillegal interest of 1 2 per centum was levied on loans taken andPla 8 refers to the omission to show properly in theadministration report the net profits earned by the Associationand that these statements do not constitute an allegation offraud. The refusal of the office-bearers to pay heed to arequisition to hold a general meeting in order to pass a vote ofno confidence against them and the harassment of memberswho were actively interested in th.e requisition, it was submitted,also did not amount to fraud. Some of the other paragraphs ofthe article are manifestly innocuous. Although paragraphs Pla 1to Pla 10 of the article taken individually, may not bear adefamatory meaning, the article must be read as a whole in orderto extract its true meaning. See Stewart Printing Co. (Pty) Ltd., v.Conray (1). Gatley on Libel and Slander. 5th Ed., page 593; Dr.Amarasinghe on Defamation and Other Injuries page 23.
The question whether the article as a whole is capable of adefamatory meaning first of all. in its natural and ordinary senseis a matter for the Court to determine, looked at from thestandpoint of reasonable men or men of ordinary and averageintelligence, to whom it is published. Stewart Printing Co. (Pty)Ltd. v. Conray (1) Gatley 121.
Paragraph Pla 1 of the article refers to a petition signed by alarge number of members sent to the Prime Minister, otherMinisters and officials requesting an inquiry into a fraud
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involving several lakhs of rupees in the Railway BenevolentAssociation.
In Lewis and another v. Daily Telegraph Ltd., and Lewis andanother v. Associated Newspapers Ltd.{2) the two defendantnewspapers each published statements that officers of the city ofLondon Fraud Squad were " inquiring " into the affairs of the (R.Co.,) and its subsidiary Companies "and that the chairman of theR. Co. was Lewis. Lewis and R. Co., brought action for libelagainst each newspaper. The two sets of actions were triedseparately. Lewis pleaded an innuendo to the effect that thestatement meant that he had been guilty of fraud or wassuspected by the Police of having been guilty of fraud ordishonesty in connection with R. Co.,'s affairs. R. Co, pleaded ananalogous innuendo. The defendant admitted that the wordswere defamatory in their ordinary, meaning, pleaded justificationin that the fraud squad were at the time of publication inquiringinto the affairs of R. Co. The defendants did not seek to justify theextended meaning pleaded in the innuendo. At the trial noextrinsic fact was proved in support of the innuendo, but the trialjudge rejected the defendants' submission that the innuendoshould not be left to the jury. In summing up the trial judgedirected the jury that the words would bear the sense alleged inthe innuendo. The jury awarded heavy damages against thenewspapers. The Court of Appeal ordered new trials for thereason that no innuendo should have been left to the jury asthere was no extrinsic evidence to support the separate cause ofaction which a true innuendo constituted.
The decision of the Court of Appeal was affirmed by the Houseof Lords in the case reported in 1963. 2. AER 151. In the Courtof Appeal, Holroyd Pearce L.J., said: " The fact that a man isunder inquiry from the fraud squad is detrimental to hisreputation ".
That case is distinguishable from the present case because theallegation there was that the affairs of the company were underinvestigation of the Fraud Squad whereas in the instant caseparagraph Pla 1 of the article merely refers to a request made foran inquiry into an allegation of fraud and irregularities in theSociety concerned.
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The Independent Newspapers Ltd. v. Devadasa (L H. de Alwis. J.)
513
In regard to the natural and ordinary meaning of the words inthe article, learned Counsel for the appellant submitted that thewords in themselves do not contain any imputation or allegationof fraud against the respondent or the office-bearers of theassociation. The article imputed no blame to anyone, but onlyhighlighted the apathy on the part of the bureaucracy ininvestigating the allegations brought to the attention of the PrimeMinister and other Ministers. Indeed, it was submitted thateventually it did achieve some result, because the associationwas incorporated by an Act of Parliament in 1965. Before that,its non-registration was an impediment to government controland supervision. But the allegations, which, it was submitted thebureaucracy was slow to investigate, were in regard to a fraud ofseveral lakhs of rupees in addition to other irregularities. Theheadlines posed the question of fraud and the first paragraph ofthe article referred to a petition being sent to the authoritiesregarding a fraud, (not just an allegation of fraud) involvingseveral lakhs of rupees. The association had been formed in1 946 and its funds had risen to forty lakhs of rupees at the timeof the publication of the article. There were about 5,000members and the monthly membership subscription wasRs. 4/- per month. Paragraph Pla 8 states that the net profitsearned by the Association from its membership subscriptionhave not been properly shown in the administration report. In thelast two pararaphs Pla 9 and Pla 10 the article holds the office-bearers of the association responsible for this state of affairs. Arequisition signed by over two thousand members requisitioninga general meeting in order to pass a vote of no-confidence onthe office-bearers was ignored by the latter who. it was alleged,were harassing those members who were actively interested inhaving the meeting held. Reading the article as a whole thelearned District Judge has correctly applied the test of howreasonable men would have understood it and has come to theconclusion that the article was defamatory of the office-bearersof the association. I am of the view that his conclusion is right.
It is true that the allegation has not been made against theplaintiff by name. But he was at the time the Vice-President of the
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association and learned Cousel for the Appellant conceded, inthe course of the argument, that if the article was found to bedefamatory of the office-bearers of the association, then theappellant would be liable. Indeed, where a defamatory imputationhas been made against a class of persons, every member of thatclass is entitled to bring an action, if the surroundingcircumstances show that reasonable men would be likely tounderstand the imputation to refer to him as an individual. MeKerron, The Law of Delict, 6th Edition, page 169.
In Levy v. Moltke (3) referred to by Dr. Amerasinghe in hisbook on Defamation and Other Injuries, at page 51. Graham JPsaid: "… But where they (the defamatory words) refer to all themembers of a particular number, group or class, that is todefinite persons though included under a general term such as" all the officers of this regiment " or " all the members of thatjury " each one of that particular group or class can sue
In Kunupffer v. London Express Newspaper Ltd. (4) thedefamatory words complained of concerned Russian politicalrefugees called " Mlado Russ ", with a very large membership inother countries too, though the branch in the U.K. consisted ofsome 24 members. The appellant who resided in London andwas the active head of the U.K. branch of the associationcontended that the defamatory article reflected upon himpersonally. It was held that there was nothing to show that thewords referred to the appellant as an individual and his claim,therefore failed. Viscount Simon L.C., however observed that:" Itis an essential element of the cause of action for defamation thatthe words complained of should be published 'of the plaintiff'.Where he is not named the test of this is whether the wordswould reasonably lead people aquainted with him to theconclusion that he was the person referred to. The questionwhether they did so in fact does not arise if they cannot in law beregarded as capable of referring to him. If a defamatorystatement made of a class or group can reasonably beunderstood to refer to every member of it, each one has a causeof action
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The Independent Newspapers Ltd. v. Devadasa (L. H. deAlwis. J.)
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In the present case, as stated earlier, the defamatory wordsreferred to the office-bearers of the Railway BenevolentAssociation which consisted of a very small group of persons,namely, the President, Vice-President, Treasurer and Secretary.The respondent was the Vice-President of the Association at thetime, and the defamatory article was capable of referring to therespondent and would have led reasonable men who knew himto the conclusion that it did. There is ample evidence called bythe respondent to establish this fact. Witness Gunapala who wasa member of the association and knew the respondent as theVice-President in 1961. concluded that the article referred tohim as an office-bearer. He also testified to the fact that thefunds of the association were in the custody of the office-bearersand questioned the respondent about the article.
The learned District Judge was therefore right in coming to theconclusion that the article was defamatory of everyone of theoffice-bearers and that the respondent being one of them, couldsue.
There was evidence that there had been some irregularities inthe association involving a sum of over three and a half lakhs ofrupees between the years 1 958 and 1959. But the article doesnot specify the period of the alleged fraud it referred to, so thatany reasonable reader of the article would have attributed thealleged fraud to the present office-bearers of the association andthat only aggravated the libel against the respondent.
The respondent also alleged in paragraph 8(a) to (d) of theplaint that the article in its extended meaning was defamatory ofhim. The headlines of the article bear a mark of interrogation andwhere words are put interrogatively, an innuendo is alsonecessary. Gatley page 45. Whether the statement in the articlecould bear the meaning assigned to them is a matter to bedetermined by Court and whether they were so understood is amatter for the respondent to establish. Sub-paragraph (b) ofparagraph 8 relates to the irregularities referred to in the article,while sub-paragraph (c) refers to the levying of illegal interest of
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1 2% from- members who had taken loans and sub-paragraph (d)deals with the harassment by the office-bearers of thosemembers who persisted in their attempt to requisition a generalmeeting to question the conduct of the office-bearers. Thesesub-paragraphs do not carry the extended meaning of fraudattributed to the office-bearers and the learned judge has rightlyheld so. It is otherwise in regard to paragraph 8 (a) of the plaint,where the article is reasonably capable of bearing the meaningassigned to it. namely that there was a fraud committed by theoffice-bearers of the association running into about four lakhs ofrupees.
Extrinsic evidence was led by the respondent to establish theinnuendo. Witness Cabraal who translated the article said that heinferred that a fraud had been committed by the office-bearersbecause of the allegation of fraud contained in it and from thestatement that the profits earned by the association had not beenproperly shown in the administration report. Chandrapala Perera.another witness also testified that he understood the article tomean that the office-bearers had committed a fraud of funds ofthe association. Gunapala who was a member of the associationconcluded from a reading of the article that the office-bearerswere guilty of a fraud involving lakhs of rupees and hadquestioned the respondent about it.
Although there was a little confusion over the learned DistrictJudge's finding on the issue of the innuendo pleaded inparagraphs 8(a) to (d) of the plaint, later in his judgment he hasheld quite clearly that the innuendo set out in paragraph 8 (a)alone had been established but not that in the other paragraphs8 (b) to (d).
Learned Counsel for the appellant submitted that an innuendocannot be drawn from the article because it could not be saidthat the article was reasonably capable of meaning that theoffice-bearers were responsible for the fraud. He furthersubmitted that the learned District Judge erred in coming to theconclusion that the innuendo contained in paragraph 8(a) had
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been established. He pointed out that the respondent himself didnot say in evidence that the article alleged the commission of afraud by him or the office-bearers. But he does refer to theallegation of fraud in the article and goes on to say that it doesnot refer to the earlier irregularity involving about three and ahalf lakhs of rupees during the period 1958 to 1959, becauseno date is mentioned in the article. As such he was affected bythe article as one of the office-bearers of the association at thetime of publication. In fact he said that several people questionedhim about the article and he felt badly humiliated over it. Theother witness Gunapala, called by the respondent was a memberof the association and said that the funds of the association werein the charge of the office-bearers so that they would naturally beheld responsible for any alleged fraud. That would be how anyreasonable man would understand the article on reading it. It hasalready been shown that the defamatory words in the article referto the office-bearers of whom the respondent was one and thereis extrinsic evidence of witnesses that they understood theallegation in the article in that sense and questioned therespondent.
Learned Counsel for the appellant sought to distinguish thecases of Lewis and another v. Daily Telegraph Ltd., and Same v.Associated Newspapers Ltd.. (2) on that ground that the newsitem while referring to an inquiry of the affairs of R. Co., alsonamed the Chairman of the Company as Lewis. But in thepresent case the number of the office-bearers of the associationwas so small that the imputation of fraud against the office-bearers would attach to each and every one of them, includingthe respondent who was the Vice-President at the time.
In my view the innuendo set out in paragraph 8 (a) of the plainthas been established and the learned District Judge was not inerror in coming to that finding.
It now remains to determine whether the defence of qualifiedprivilege which was the only defence relied on by counsel for theappellant at the hearing of the appeal is entitled to succeed.
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Learned Counsel for the appellant submitted that the learnedDistrict Judge erred in rejecting that defence. In order to seek theprotection of privilege, the appellant must establish that it madethe communication in the discharge of a duty, and that thepersons to whom it was made had a duty or interest to receive it." It is not necessary that the defendant should be under a legalduty to make the communication; it is sufficient that he is undera moral or social duty to make it. The person to whom thecommunication is made must have a similar duty or a legitimateinterest to receive it. This reciprocity is essential'". McKerronLaw of Delict 6th Edition page 178.
In the case of Toogood v. Spyring (5) page 1 93 referred to byGatley on Libel and Slander 5th Edition page 192, Parke B statedthe law as follows; " In general an action lies for the maliciouspublication of statements which are false in fact, and injurious tothe character of another and the law considers such publicationas malicious, unless it is fairly made by a person in the dischargeof some public or private duty, whether legal or moral, or in theconduct of his own affairs, in matters where his interest isconcerned. In such cases the occasion prevents the inference ofmalice which the law draws from unauthorised communications,and affords a qualified defence depending on the absence ofactual malice",
In the present case there is no evidence of malice or animosityon the part of the appellant against the respondent.
In Adam v. Ward (6) Lord Atkinson said: " A privilegedoccasion is … an occasion where the person who makes acommunication has an interest, or a duty, legal, social or moralto make it to the person to whom it is made, and the person towhom it is so made has a corresponding interest or duty toreceive it. This reciprocity is essential ". See also Haisbury, Lawsof England 3rd Edition Vol. 24 page 56.
" No difficulty can arise in determining whether the defendantwas under a legal duty to speak. But it is often a delicate matter
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to determine whether he was under a moral or social duty to doso. The question can be decided upon a consideration of all thecircumstances of the case . . . Perhaps the best test is thatapplied by Lindley U in Stuart v. Bell (7). "Would the great massof right-minded men in the position of the defendant haveconsidered it their duty to speak? " The test, it will be observed, isobjective, not subjective. The question is not whether thedefendant believed that a duty existed but whether a duty in factexisted ". McKerron Law of Delict 6th Edition, page 179.
In the present case there clearly was no legal duty cast on thedefendant to publish the article. The question then is whether ithad a moral duty to do so and whether the public to whom it waspublished had a corresponding interest to receive it. The interest,must be a legitimate interest, i.e.. one which the Courts willrecognize and protect, and not one which springs from mere idlecuriosity only. The word 'interest' is not used in any technicalsense. It is used in the broadest popular sense, as when we saythat a man is 'interested' in knowing a fact — not interested in itas a matter of gossip or curiosity, but as a matter of substanceapart from its mere quality as news. So long as the interest is oftangible a nature that for the common convenience and welfareof society it is expedient to protect it. it will come within the rule. Gatleyibid 195.
Dr. Amerasinghe in his book on Defamation and other injuries,states at page 101. " It has been stated that the broad basis ofthe defence of privilege is not the convenience of an individual orof a class but the common convenience and welfare of society orthe general interests of society ". See also Perera v. Peiris (8).
Learned Queen's Counsel for the respondent contended thatthe Government Railway Daily Paid Employees' BenevolentAssociation was a private society and not a public body orinstitution. At the time of the publication of the article it was noteven incorporated and later in 1965 when it was incorporated, itdid not become a public corporation. It was an association ofdaily paid workers and at the time, not under the control of the
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Railway Department or Government. The membership consistedof only 5.000 persons and the public at large could have had nointerest in its affairs. Applying the objective test enunciated byLindley U In Stuart v. Bell (7), as to whether the great mass ofright-minded men in the position of the defendant would haveconsidered it their duty to speak, the answer must be in thenegative. Learned Queen's Counsel also submitted that theappellant has not produced a copy of the petition sent to thePrime Minister and other Ministers alleging a fraud in order toestablish that it honestly and reasonably believed that it wasunder a duty to make the communication. The appellant has alsogiven no evidence at all at the trial.
The news item may at the most have been of interest to themembers of the association, and if the defamatory statements inthe impugned article had been communicated only to them itmay be that the defence of privilege may have succeeded. Themembers consisted only of 5,000 persons and constituted just asmall section of the public. The general public, consisting of thereaders of the newspaper to whom it was published, as a newsitem, would certainly have had no interest in the affairs of thisinsignificant society.
A case in point is Chapman v. Ellesmere and others (9), wherethe Stewards of a Jockey Club after inquiry issued a statementthat they were satisfied that a drug had been administered to ahorse, which had won a race at Kempton Park, and that they" disqualified the horse for this race and for all future racesunder their rules and warned the trainer (the plaintiff) of thehorse off Newmarket Heath ", By a rule of the Rules of Racing,the Stewards were given the power of granting and withdrawingor suspending trainers' licences, of warning any person off theturf, and of publishing their decisions in the " Racing Calendar ",The licence granted by them to the plaintiff provided that it wassubject to the Rules of Racing. The defendants as agents of theStewards, communicated the statement to news agencies, whocirculated it to newspapers, one of which, also a defendant,published it. The statement was also published in the " Racing
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Calendar The plaintiff claimed damages against the Stewardsand the other defendants for libel, pleading that the statementmeant, and was understood to mean that he himself haddrugged the horse. It was held that the publication in the" Racing Calendar" was not excessive and as it had beenaccepted as part of the terms and conditions on which theplaintiff held his licence, it was made on a privileged occasion.But in regard to the Times newspaper, it was held that there wasno duty on the Times newspaper to publish it to their readers andthe publication in the Times was therefore not on a privilegedoccasion. Racing was only a sectional interest of the public andconsequently the duty was only to inform a part of the public. Itwas on this basis and the fact that plaintiff had accepted hislicence subject to the publication of matters of interest andimportance in the " Racing Calendar', that the publication inthat newssheet alone was privileged.
In the present case too, only a section of the public, namely themembers of the Benevolent Society would have been interestedin the publication of the article but as it had been published tothe readers of 'Davasa' newspaper, who constituted the generalpublic, the occasion was not privileged.
Learned Counsel for the appellant contended that themembers of the Benevolent Society were public servantsemployed in the Railway Department and the affairs of theirassociation were a matter of public interest. He referred to theparagraphs in the news article which referred to a petition beingsent to the Prime Minister, a complaint being made to theMinistry of Communication and Transport and a letter being sentto the Minister of Finance and submitted that the article waspublished not in order to injure the reputation of the respondentbut in order to expose the inaction on the part of the authoritiesto hold an inquiry. But the association was not a. publicinstitution over which the government had any control. Counselalso pointed out that these complaints ultimately resulted in theincorporation of the society. But that took place much later in1 965 and even then the society did not become a government-
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[1983/2 Sri L. R.
controlled corporation. It was not a public institution in which thepublic could be said to have a legitimate interest in knowingabout its affairs and consequently the appellant had no moral orsocial duty to bring any alleged irregularity or fraud committed inthe Society to the notice of the general public.
The case of Webb v. Times Publishing Co.. Ltd. (10) cited bylearned Counsel for the appellant is distinguishable from thefacts of the present case. That was a case where a fair andaccurate contemporaneous report of foreign judicialproceedings was published by a newspaper in English and thesubject-matter of the report was held to be of legitimate andproper interest to the English public as being a matter connectedwith the administration of justice in England.
In my view the association was not a public body and theappellant had no moral or social duty to publish the article Plabecause the affairs of the Society were of no concern or interestto the general public. The occasion was therefore not privilegedand the defence of privilege must fail.
I accordingly dismiss the appeal with costs.
TAMBIAH, J. — I agree.Appeal dismissed.