The Criminal defamation Case

CBK vs. The Sunday Times

Part VII

13th July 1997

The point I wish to make, in this regard, is this, that is, that, if as admitted by the accused himself, the relevant page containing the relevant article was sent to the accused for his (accused’s ) approval prior to publication in the city edition, there is greater reason to suppose that it would have been so sent to the accused for his approval prior to publication in the provincial edition, as well, which edition is anterior to the city edition ( in point of time). In other words, if the subsequent publication in the later edition, that is, in the city edition was admittedly with the accused’s approval it is rational to think that the earlier publication, being also the first publication would also have been necessarily with the accused’s approval or at least, it would have been sent to him prior to the publication of provincial edition as well. In fact, in his evidence given on 27.08.1996 the accused himself had virtually admitted that position, in somewhat veiled terms, as follows :-

“Q : Did you see this or not: page 9 prior to the publication ?

A : I would have seen, it; I saw the provincial edition, the whole paper. “

If, as admitted by the accused himself that he saw the provincial edition of the paper in its entirety before its publication it is un-reasonable to suppose that he browsed through the whole paper (before publication of the provincial edition ) but excluding the gossip column. On the contrary he (the accused) would have taken particular interest in reading in the gossip column as well more so,

( as he had said) he had also contributed 3 passages to the gossip column - assuming for the sake of argument, that the accused did, in fact, write only 3 passages of the gossip column (and not the whole of it containing 38 passages) which was what the accused had stated in evidence.

Although on 27.08.1996 the accused had said (as pointed out at page158 hereof) that he saw the whole paper to publication of the provincial edition on 10.10.1996 (2.45 p.m ) the accused had varied that position and had said :-

“Q : Is it your position that you did not read any single page of the Sunday Times of 19th of February 1995 in proof form prior to the publication of the provincial edition?

A : I cannot recall and it is not my position what pages I read.

Q : You cannot answer that question one way or the other ?

A: Yes.”

On 27.08.1996 the accused had said :-

“Q : Even prior to the publication of the provincial edition the relevant page would have come to you?

A : That would have been sent in proof; I cannot recall whether I was there or not. If I was there they would have sent it to me. I am not hundred percent sure whether this page was sent to me before the publication of the provincial edition.”

Then on 24.09.1996 (11.25 a.m) the accused confusingly draws a distinction between the page containing the relevant article being sent to him prior to publication of the provincial edition and the possibility of his (accused’s) not reading it ( the relevant page ) even if it had been sent to him prior to the publication of the provincial edition. To quote :-

“Q: You were questioned about the proof page on the 27th of August 1996 and you have not excluded the possibility of your having seen it at the proof stage?

A . I may not have excluded the possibility of seeing it, but I have said that if I was there proof page would have been sent to me. What I have said was that I would not exclude the possibility of having received the proof page not whether I was there or not. This is different from excluding the possibility of having seen the proof page relevant to the article prior to the publication of the provincial edition.” The accused once again was indulging in linguistic manipulation.

It had been pointed out above at page 149 hereof that the accused-editor in answer to a question directly put by the court had on 03.07.1996 said, in unqualified terms that he read the article relating to Her Excellency the President relevant to indictment, to use the accused’s own words: “ Just before the publication.” Then on a subsequent trial date i.e. 27.08.1996 the accused- editor had stated that he couldn’t recall such a question being put to him by the court, let alone the answer that he gave, and on the same date, a short while later, he (the accused) thawed a little and ( as pointed out above as well) had given the following answers : “ I think I was asked that question by the court,” and also said : “ yes, I think I recall the answer.”

But on the same date 27.08.1996 a few lines below that, the accused had said :

“ Q : Your answer to the question do you recall saying “ just before the publication” ?

A : I cannot recall answering that way.

Q : If it is so recorded ?

A : It would not be correct.

Q : Do you deny having said that ?

A : I must have expanded on that.”

In this regard I cannot say that the accused was staunch to his oath to speak the truth and the whole truth which makes the judge’s task as onerous as onerous can be.

It will be recalled that he (the accused) refused to disclose the name of the writer of the relevant article and thereby excluded or suppressed evidence which was not only logically but also legally probative and thus made it more difficult for the court to do what it is expected to do viz. to get at the truth.

Continuing his evidence the accused said:-

“ Q : Do you deny that you said so?

The accused was undaunted, being never at a loss for an explanation, and in fact, had an explanation to give, and as an answer to the above question unblushingly said - ( by way of answer) :

A : I do not deny but that would be part of my answer. I think part of the answer had been omitted.”

The hesitant and tentative manner and the diffident note on which the above answer had been given may be noted.

It is manifestly false for the accused to have said that part of the answer had been omitted for his own evidence given on still later trial dates i.e.10 10.1996 and on 11.10.1996, and14.10.1996 (which evidence is reproduced later on at pages 171 & 172 hereof) places it absolutely beyond controversy that nothing had been omitted but that his answer given on 03.07.1996 had been faithfully recorded verbatim and that his answer viz. “ Just before publication “ - represented the full answer given on 03.07.1996. It will be recalled that, as pointed out above, at page 149 hereof when on 03.07.1996 the court questioned the accused he had said thus :-

“ Q : When did you see the article?

A : Just before publication.”

On 10.10.1996 ( at 2.45 p.m. ) under the stress of further cross-examination ( by the learned Deputy Solicitor- General) the accused had said:

“Q : In the English copy of the proceedings of 3rd July 1996 the court has asked the question at page 20; “ Is it your position that the article alleged to have been defamatory and in respect of which you have been indicted was published without your knowledge ?

A: Yes.

Q : And you have given the answer “I saw the article.”

A: Yes.

Q : Then you have asked the very next question -”when did you see the article”?

A: Yes.

Further cross-examination continued thus : (10.10.1996 - 3.15 p.m.)

“ Q : Then you have given the reply “ just before the publication.”?

A : Yes.

Q : The answer that is recorded was merely “ I saw the publication “?

A : Yes.

Q : What you say in court today is that you said something more than that - you only saw prior to publication of the city edition and not before the publication of the .provincial edition ?

A : I am not hundred percent sure as to whether on that occasion I mentioned provincial edition or the city edition.”

By the above answer the accused admits that he is “not hundred percent sure” whether ( on 03.07.1996 he referred to or distinguished between any publication - city or provincial - apart from the mere bald answer : “ Just before the publication” .

In other words the accused by the above answer admits that he is “not hundred percent sure” whether he qualified the answer he gave to court on 03.07.1996, viz. , “ just before publication” - by adding to the said answer- the fact i.e. that he saw the article in question after the publication of the provincial edition but before the publication of the city edition which was the position that the accused adopted later on at the trial.

The accused admitted further that even in the Sinhala proceedings of 03.07.1996 he had merely said that he saw the relevant article “ before the publication” and had not qualified that answer by stating that he saw the relevant article after the publication of the provincial edition. ( It is not to be forgotten that the accused said that he thought that part of the answer i.e. that he read the article after the publication of the provincial edition - had not been recorded or left out). To quote from the accused’s evidence given on 10.10.1996 (3.15 p.m.)

“ Q : In the answers you have given to the last two questions in Sinhala version have you qualified that - you saw the article P3(a) only prior to the publication of the city edition?

A : I have not qualified that in the Sinhala version.

Q : Merely you say that you saw it prior to the publication in the Sinhala version of the proceedings ?

A: Yes.

Then, in regard to the same matter the accused had on 11.10.1996 (10.55.a.m.) further answering questions under cross-examination had stated as follows :-

“Q : Now Mr. Ratnatunga, yesterday I showed you the proceedings of 03.07.1996. In answer to court you have stated that you saw the article P3(a) prior to publication?

A: Yes.

Q : In that you have not made any qualifications when you gave that answer pertaining to any edition being published at that time ?

A : I have not qualified, but I have said just before publication. That is on 03.07.1996 I have said “ just before publication.” That is on 03.07.1996 I have said “just before publication.”

On the same date 11.10.1996 (10.55 a.m) the accused had further admitted that on 03.07.1996 in answer to a question put by the court (as to when he (the accused) read or saw the relevant article) the accused had merely stated “ just before publication” - and nothing more. To quote from the accused’s evidence given on 11.10.1996:

“Q : So when you gave that answer you have not stated that you saw after the publication of the provincial edition ?

A : I have not specifically said so. This is in answering court on 3rd July 1996.

Q : Therefore the answer you gave to court on 03.07.1996 is correct ?

A: Yes.”

If the answer is correct it must of necessity to be held to have been correctly recorded as the accused himself had, at long last conceded on 14.10.1996 (vide page 172 of this judgment).

And, to repeat, the answer, that he gave to court on 03.07.1996 which was as follows:-

“Q : Is it your position that the article alleged to be defamatory and in respect of which you have been indicted was published without your knowledge?

A : I saw the article.

Q : When did you see the article?

A : Just before the publication.”

It will be recalled that the accused, at one stage of his evidence, (as pointed out above) stated that the phrase, viz. “Just before the publication “ represented only a part of his answer and that the other part had been left out. But the accused’s own evidence now betrays the fact that it is not so.

It is to be observed even when the accused was directly questioned on 03.07.1996 as to whether it was his position that the article alleged to be defamatory was published without his knowledge - he ( the accused) chose to say : “ I saw the article”. The fact that he chose to answer the question that way, that is, in the way that he had, in fact, answered it, is more expressive, than anything else, of the fact that it was, in fact, published with his knowledge for he (the accused) couldn’t have meant anything else rather than what he had said by way of answer. ( on 03.07.1996 )

Then on 14.10.1996 (11.35 a.m) the accused was cross-examined with regard to the answer that he had given to court on 03.07.1996, viz., that he read the article, to use the accused’s own words; “just before the publication”. When the accused was so cross examined on 14.10.1996 he was constrained to tell the truth and stated as follows:

“Q :Therefore, the true position is that you did not draw a distinction when you were questioned by court with regard to city and provincial edition on the 3rd of July 1996?

A : I did not draw the distinction between Provincial Edition and City Edition.

Q: You have not specified in your answer on the 3rd of July 1996, you read P3 (a) after the publication of the Provincial Edition but before the publication of the City Edition ?

A: Not on that day; I did not specify on the 3rd of July 1996 .

Q: In other words, you have not specified on the 3rd of July 1996 whether you read P3 (a) after the publication of the provincial edition and before the publication of the city edition ?

A : I have not specified whether I read P3 (a) before the city edition and after the provincial edition.

(P3 (a) is the excerpt in the gossip column relevant to the indictment)

Q : Therefore that the position you took up earlier that only part of the answer has been recorded when you gave the answer to court before the adjournment on the 3rd of July 1996 is incorrect?

A : That I clarified subsequently.

Q : Therefore, that position is incorrect?

A : Yes.

Giving further evidence on the same date (14.10.1996) questioned by the court the accused had said thus :-

Q : What you say is the answer you have given on the 3rd of July 1996 to court is correctly recorded?

A: Yes.

Q : And when the court questioned you on 3rd of July 1996 as to when did you see the article, you had give the following answer?

A: “Just before the publication.”

Q: Is it the full answer you gave to that question?

A: Yes, that is the full answer I gave to court on the 3rd of July 1996.”

It is to be observed, as pointed out above at page 163 here of, the accused had said on 27.08.1996 that: “Just before the publication” - represented only a part of his answer and that a part of his answer had been “left out”. In that context, I had made the observation that the accused’s own evidence would serve to show that the story that: “Just before publication” - represented only a part of his answer, was false. Thus, it will now be clear why I made that observation - at that stage, for (as pointed out above) the accused, whether he liked it or not, had conceded that the answer he had given on 03.07.1996 viz, “just before the publication” - represented the full answer. Even at the risk of repetition it will be recalled that answer viz: “Just before publication” - was given to the question put by court (on 03. 07.1996) which question was : when did you see the article?”

To briefly recapitulate what is set out above at length - the accused categorically and in unqualified terms stated in answer to court on 03.07.1996 that he saw the article relevant to this case to use the accused’s own words “just before the publication”. Thereafter on 27.08.1996 he stated he could not even recollect being questioned by the court in that regard - let alone recollect the answer that he gave (on 03.07.1996). But on the same date, a short while later, he (the accused) had stated that he could remember being questioned by the court and also the answer he gave although, on that occasion, he omitted to mention what the answer according to his recollection was that he gave on 03 07.1996. Thereafter on a still later trial date i.e. 11.10.1996 the accused had stated that the answer he gave to court (on 03.07.1996) was correct and also conceded apart from merely saying that he saw the article: “Just before publication”- he did NOT qualify it by saying that he saw it after the publication of the provincial edition. Thereafter on 14.10.1996, the accused explicitly stated that he recalled the answer that he gave to court (on 03.07.1996) and also un-reservedly conceded that his answer viz., “Just before the publication”- represented the full answer that he gave (on 03.07.1996) and also that it (the said answer) had been correctly recorded.

Why did the accused seek to recant what he stated on 03.07.1996 viz., that he saw the relevant article (to use the accused’s own words) “just before the publication” and (seek to show that he read the relevant article after the publication of the said article in the Provincial Edition which was the earlier or the first edition. Obviously because the defence (the accused) wanted to retain or to have the scope to argue, as the defence counsel, in fact, had done in their written submissions dated 28.02.1997, 04.04.1997 and oral submissions made on 24.04.1997 that the offence of defamation had already been committed, (in consequence of the publication of the article in the provincial edition) by the time the accused read the article which the accused did (read) but only (according to the defence submission) after the publication of the relevant article in the provincial edition. In the written submissions dated 28.02.1997 the argument in this regard is formulated by the defence as follows: “The accused’s evidence was that he read the alleged defamatory article late in the evening of the day and by this time provincial Edition had been despatched for circulation. Hence any possible offence under the Press Council Law had already been committed by the time he had knowledge of the alleged defamatory matter. In other words the offence had been committed without his knowledge. He is therefore (in addition to all other defences available) entitled to the benefit of the proviso.” This same submission, more or less, was repeated in the course of oral submissions made on 04.04.1997 - and also in the oral submissions made on several dates thereafter.

The proviso referred to in the above submissions of the defence is the proviso to section 14 of the Press Council Law under which the accused is indicted along with section 15 of the Press Council Law on the 2nd count. And whether the accused is entitled to the benefit of the proviso will be considered later on when examining the 2nd count. But in this context, as the court is still considering the liability of the accused to conviction on the 1st count laid under section 479 of the Penal Code, I shall restrict myself to examination of the question whether or not the accused has to be convicted on the lst count of the offence of defamation as defined in section 479 of the Penal Code - even assuming for the sake of argument that the publication of the relevant excerpt in the provincial edition (being the earlier of the two editions) was “without the knowledge” of the accused. The submission of the defence that the accused could not be convicted of the offence under section 479 of the Penal Code nor under the Press Council Law inasmuch as the article had been published in the provincial edition without the knowledge of the accused is rested on a clear misconception of the law or upon the defence choosing deliberately to have a wrong idea or conception of the law. The simple answer to the defence argument, even assuming that the publication in the provincial edition was without the knowledge of the accused, is that every fresh repetition of a defamatory matter is a publication and the repetition of the same defamatory excerpt regarding Her Excellency the President in the city edition, admittedly with the accused’s authority and concurrence, is equally or no less culpable than the earlier publication of it in the provincial edition.

The defence submission assumes that the repetition of a defamatory statement does not constitute the offence of defamation - a submission which is as wrong as wrong can be. The injustice of such a legal position, if, in fact, that were tenable, from the stand point of the person defamed, is obvious. For example, 100 persons or more can make the same defamatory publication or statement against the person X. and when “X” sues them or any one of them each one of them will say that he was not the 1st to make the defamatory publication and that he only repeated what one of them had already said or someone else apart from those 100 persons had already said. By way explanation, I may say that in civil law too - each repetition is a fresh publication creating a new cause of action on which the person defamed can sue for damages. It is a basic principle which is a bed-rock principle and it is strange that one did not know or was oblivious to such an elementary principle partaking of the nature of a rudiment in the law.

To quote from Gour’s Penal Law of India (Vol.4) page 4132: “The term publication is wide enough to include a repetition or republication of a libel already published for tale-bearers are as bad as tale- makers.” As stated in Halsbury’s Laws of England (Vide Vol. 24 para 84 P.47): “If the defendant made a statement, whether in writing or by word of mouth, it is no justification ...... that the statement purported to be made on the relation of another and that it had, in fact, been related to the defendant by that other, even though the defendant disclosed the name of his informant...”

To revert to Gour and quote from page 4133: “Every re-publication of a libel is a new libel and each publisher is answerable for his act to the same extent as if the calumny originated with him. The publisher of libel is strictly responsible irrespective of the fact whether he is the originator of the libel or is merely repeating it. So, if a newspaper reproduces a libellous article it makes the article its own and is liable to all the consequences resulting from its publication.”

The principle enunciated in the above passage from Gour has been followed in numerous decided cases and it would be tedious to reproduce them all over again in this judgment but they are referred by Gour at page 4133 in his treatise on Indian Penal Code - the Indian Penal Code being the same as ours.

The principle explained above had been consistently followed in India and where a person was accused of publishing a defamatory article shown to have been extracted from another paper West J. said: “The Indian Penal Code makes no exception in favour of a second or third publication or as compared with a first and such an exception would obviously be made a means of defeating the principal provision of the law of defamation.

Although no further authority need be cited for the proposition that one who repeats a defamatory statement is as liable as the original maker of it, for it is so well known, yet I may refer to the text book by C.D. Baker page 263 where it is stated that one who repeats a defamatory statement is as liable as the original maker of it. To quote: “one who repeats a defamatory statement made by another person is liable if the repetition constitutes a publication even if he does not know that the statement is defamatory.” Publication means the communication of the defamatory matter to same person other than the person defamed which in this instance is Her Excellency the President. The requirement of publication to a third party underlines that the law protects not a person’s opinion of himself but the estimation in which others hold him.

In the circumstances of this case, even assuming for the sake of argument, that publication of the relevant excerpt (relevant to the indictment) in the provincial edition was without the knowledge of the accused - the repetition of it in the city edition is admittedly with his (accused’s) knowledge and express concurrence.

It is to observed that the accused had stated that the circulation of Sunday Times (Provincial Edition) was in the region of 22000 copies whereas the city edition enjoyed a larger circulation which the accused put at 58000 copies. In this context, the fact that the circle of readership of the provincial edition and that of the city edition could never have been the same calls for remark - because the geographical or the physical limits of the areas of circulation of the two editions are different. The significance of this is this viz. so far as the readers of the city edition are concerned - the publication (of the article concerning Her Excellency the President) in the city edition may be considered and, in fact, is the first publication to them and not a mere repetition. It can never be supposed that the people who read the provincial edition are the same as those who read the city edition or that the people who read the city edition had read the relevant article in the provincial edition before they also read the article in the city edition as well.

But the law is clear: even if the repetition of the defamatory matter had been in the provincial edition itself even then, each repetition would be an actionable wrong or an offence.

Even assuming, for the sake of argument, that it was only the re-publication or repetition in the city edition that had taken place with the knowledge of the accused - yet he is liable on any one of the following two grounds or on both :-

(i) That the accused had admittedly sanctioned or authorised the publication in the city edition.

(ii) That the accused-editor being the editor who was authorised and able to remove the defamatory matter from the city edition failed to do so - (assuming for the sake of argument that the article was published in the provincial edition without the knowledge of the accused).

Part VIII

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