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Trinidad and Tobago High Court |
] [Hide Context] BASDEO PANDAY Defendant
Before the Honourable Mr. Justice P. Jamadar
APPEARANCES
Mr. D. Mendes, Ms. V. Gopaul and Mr. D. Gurley for the Plaintiff
Mr. S. Maharaj S.C., Mr. D. Cowie and Mr. D. Rampersad for the Defendant
1. Introduction 3 2. The Facts 4
❑ The Plaintiff 4
❑ The Defendant’s relationship with the Plaintiff 6
❑ The Guardian article 8
❑ The Shiprider agreement 8
❑ The Green Paper on media reform 9
❑ The Plaintiff’s speech of the 7 th May, 1997 9
❑ The Green Paper controversy 16
❑ The Prime Minister’s address of the 30 th May, 1997 20
❑ Mr. Anthony Fraser: TTT coverage of the Prime Minister’s address 22
❑ Mr. Richard Lord 24
❑ Events following the Prime Minister address 25 3. The Pleadings 34
❑ Damages for libel 34
❑ Exemplary damages 36
❑ Qualified privilege, ‘Reply to Attack’ 37 4. The Issues 41
❑ Were the words spoken of and concerning the Plaintiff 41
❑ Were the words defamatory 47
❑ Were the words spoken concerning or in the way of the Plaintiff’s calling 51
❑ Republication 56 5. Alternative Findings 63
❑ The defence of qualified privilege, reply to attack 64 a. No evidence of ‘reply’ 66 b. Counter-attack 67 c. Malice 69
❑ Exemplary damages 73 6. Damages 75
Here every creed and race find an equal place,
And may God bless our nation.
Here every creed and race find an equal place,
And may God bless our nation.
With these words, the National Anthem of the Republic of Trinidad and Tobago concludes. These words were composed and penned at the time of our Independence in 1962, and they reflect both the vision and hope of a People. Their repetition emphasises their importance and the underlying plural reality that is Trinidad and Tobago.
Trinidad and Tobago is a multi racial, multi ethnic, multi cultural, plural society. In fact, as the 1998 statistics published by the Trinidad and Tobago Central Statistical Office demonstrate, our ethnic and religious compositions are as follows (the Hindu, Muslim and Presbyterian adherents being mainly of East Indian descent):-
Non-Institutional Population 1980 1990 1980 1990
Ethnic Group % Religion %
African Desc. 40.8 39.6 Roman Catholic 33.6 29.4
E. Indian Desc. 40.7 40.3 Anglican 15.0 10.9
White 0.9 0.6 Hindu 25.0 23.8
Chinese 0.5 0.4 Islam 5.9 5.8
Mixed 16.3 18.4 Presbyterian 3.9 3.4
Other 0.8 0.2 Other 16.6 25.7
Not Stated - 0.4 Not Stated - 1.0
Understandably therefore, when we acquired Republican status in 1976 and enacted Act. No. 4 of 1976, The Constitution of the Republic of Trinidad and Tobago, it was stated in the Preamble thereof:-
Whereas the People of Trinidad and Tobago
(a) have affirmed that the Nation of Trinidad and Tobago is founded upon principles that acknowledge the supremacy of God, faith in fundamental human rights and freedoms, the position of the family in a society of free men and free institutions, the dignity of the human person and the equal and inalienable rights with which all members of the human family are endowed by their Creator;
(d) recognise that men and institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law;
Thereafter, the first chapter of The Constitution provides for the recognition and protection of Fundamental Human Rights and Freedoms, and enshrines inter alia the following rights:-
(c) the right of the individual to respect for his private and family life;
(e) the right to join political parties and to express political views;
(h) freedom of conscience and religious belief and observance;
(i) freedom of thought and expression;
(k) freedom of the press.
These statements of principle and enactment of rights, reflect what we as a People hold to be invaluable and essential to the spiritual, moral and legal existence of the free, democratic society that is the Republic of Trinidad and Tobago. These are some of the ideals that the Courts are called upon to protect in ensuring that no institution and/or no individual undermines the democratic fabric of Trinidad and Tobago. They are some of the principles that inform the interpretation and application of the law of our Land.
On behalf of the Plaintiff, Mr. Anthony Frazer, Mr. Richard Lord and the Plaintiff himself testified. The Defendant did not testify and called no witnesses on his behalf. Having seen and heard the Plaintiff and his witnesses and having observed them under cross-examination, I have no doubt whatsoever that they were all witnesses of truth and forthrightness, whose evidence was not in any material way undermined or contradicted. My assessment of the facts, based on the evidence and pleadings, is as follows.
THE PLAINTIFF
In May, 1997, the Plaintiff was a prominent citizen of Trinidad and Tobago, was married with children and enjoyed a distinguished career in the media business, public affairs and in commerce. He was a publisher, a company director and a businessman and was Chief Executive Officer of the Caribbean Communications Network (CCN), one of the leading media houses in Trinidad and Tobago. In 1997, the Plaintiff was also Chairman of British West Indies Airways (the ‘national’ airline of Trinidad and Tobago), Chairman of Neal and Massy Holdings Limited (a large international conglomerate based in Trinidad and Tobago) and was a member of the Board of Directors of the following companies, namely, Lever Brothers West Indies Limited, The Nation Corporation (Barbados), The Voice of Barbados, The Jamaica Observer and The Caribbean Publishing Company. He was also President of the Caribbean Association of Industry and Commerce. Between 1986 to 1990, the Plaintiff served as Minister of Industry, Enterprise and Tourism in the Government of Trinidad and Tobago.
The Plaintiff’s involvement in and association with the media business has a long and distinguished history. CCN was originally the Express Newspaper, which was started in 1967. The Plaintiff joined the Express Newspaper in 1969 and has remained associated with it and its successor, CCN, since that time. Prior to his stint in active politics as a Minister in Government as stated above, the Plaintiff was Managing Director of the Express Newspaper/CCN from 1969 to 1986 and Chairman and CEO of CCN from 1991 until 1997. In 1997, the media concerns of CCN included not only the Express Newspaper, but also a national television station (‘TV-6’). In addition, CCN had interests outside of Trinidad and Tobago. In Barbados, it holds a 12% equity in the Nation (Barbados) Group of Companies, which owns the Barbados Nation Newspaper (a daily newspaper); in Jamaica, it holds a 10% equity in the Jamaica Observer (a daily newspaper); in Guyana, it holds a 25% interest in the Stabrock News of Guyana (a daily newspaper); and in Grenada, it holds a 60% equity in the Grenada Broadcasting Network.
In or about 1975, the Plaintiff was the Founding Director of the Caribbean News Agency - CANA, established as a regional media news collecting and disseminating agency. CANA’s success is best reflected in the following statistics. At its inception twenty-five years ago, it disseminated 100 words per day; at present, it disseminates about 20,000 words per day.
In addition to all of the above, the Plaintiff has been the recipient of several local and international awards. Notably, and related to the media business, the Plaintiff received the following awards: The Inter-American Press Association Award, 1985–1986, for the Hemispheric Defence of Press Freedom; the Commonwealth Press Union Award, 1986-1987, for the Defence of Press Freedom; and the Maria Moors Cadot Gold Medal, 1987-1988 for the Defence of Press Freedom. In addition to these three awards, the Plaintiff also received a United Nations award for international affairs in 1991; the Media Association of Trinidad and Tobago Award in 1997, and an award from the Barbados Nation Newspaper in 1998 (in recognition of being a part founder of same).
It is clear from the above, that the Plaintiff has enjoyed a long and illustrious career in the media business and has been involved throughout the Caribbean region in the post independence development of indigenous news dissemination and reporting. Notably, for the three consecutive year period, 1985 to 1988, the Plaintiff had been selected above all his peers and recognised for his defence of press freedom.
In my opinion, the unchallenged and unequivocal evidence before this Court, is that the Plaintiff has been for over thirty (30) years, a dynamic, creative and active force behind the emergence, creation and sustenance of a free, independent and indigenous press/media throughout the Caribbean, and particularly within Trinidad and Tobago. Hearing him testify, especially in response to what was a rigorous cross examination, I have formed the opinion that deep within the Plaintiff burns an inextinguishable passion for and commitment to the role of a free press in a democratic society.
In 1969, when the Plaintiff joined the Express Newspaper, a ‘policy statement’ was established which enjoined commitment to working with the Government of the day in doing what was considered to be in the national interest. There was also commitment to oppose those things thought contrary to the national interest. No doubt, these policies were fueled by the passions of men and women stepping out from under the yoke of colonialism, into the yet uncultivated fields of free and independent self determination, when the idealistic vision of creating truly participatory democratic nation states was clear and all consuming.
The Plaintiff in his evidence admitted that while it was never the policy of the Express Newspaper, TV 6 or CCN to oppose or undermine any particular Government, or in particular the United National Congress (UNC) Government of which the Defendant is Prime Minister, these media institutions have been critical of all Governments, including the UNC Government of the Defendant. However, the Plaintiff maintained, and there is no compelling evidence to the contrary, that these criticisms have always been on issues. He explained that in his opinion, “it is a fundamental responsibility of the newspaper to be critical of those things which it considers to be wrong.” He also explained that the ‘Editorial’ in a newspaper was the policy position of that newspaper and that the issues addressed in that column, reflected the position of a newspaper on the particular issue being addressed.
The Plaintiff testified that since demitting political office in 1990, he ceased to be a member or supporter of any particular political party, though he maintained his own strongly held personal political opinions. During the course of his testimony, the Plaintiff impressed me as a strong willed, careful individual, with a keen intellect. In his cross-examination, he was at pains several times to explain what he was saying and to correct Senior Counsel for the Defendant when it was suggested that he had said or intended something which was not quite so.
On the evidence before this Court, the Defendant was in May 1997, the Prime Minister of Trinidad and Tobago and the political leader of the United National Congress (UNC), the governing political party in Trinidad and Tobago. Also, between the years 1986 and 1991, the Defendant for a time formed part of the Government of that period (The NAR Government).
THE DEFENDANT’S RELATIONSHIP WITH THE PLAINTIFF
The Plaintiff and the Defendant were in Government together for some time between the years 1986 -–1991 (the NAR Government). There is no evidence as to the quality of their relationship then, except that the Defendant’s portfolio as Minister of Tourism was passed on to the Plaintiff, when the Defendant left the then NAR Government in estranged circumstances.
However, under the tenure of the Defendant’s UNC Government (which commenced in November, 1995), the evidence before this Court indicates that up to May 1997, the Plaintiff and the Defendant were not antagonistic towards one another. On the contrary, the evidence indicates that up until May 1997, the Defendant certainly viewed the Plaintiff with some regard and respect. I have concluded this, because on the evidence of events prior to May 1997, the Plaintiff was invited by the Defendant’s UNC Government to act as and accepted the position of Chairman of the Prime Minister’s National Beautification Programme and was also appointed Chairman of BWIA around March, 1997 (a position which required the approval of the Government). In fact, with respect to this latter appointment, prior to May, 1997 the Defendant met the Plaintiff at a dinner hosted by the Chamber of Industry and Commerce (of which Plaintiff was President and the Defendant as Prime Minister was the guest speaker), and in speaking to the Plaintiff, informed him that he was pleased that the Plaintiff had been named Chairman of BWIA.
Senior Counsel for the Defendant relied on the evidence stated above, to submit in his closing speech, that “there is no dispute that the Defendant held the Plaintiff in high regard” and further, that this was “strong evidence that the Defendant did not consider the Plaintiff to be a pseudo-racist.” In his submission, Senior Counsel for the Defendant stated as follows:- “The Prime Minister would hardly have approved the Plaintiff’s position as Chairman of BWIA and as Chairman of the Prime Minister’s National Beautification Programme, if the Prime Minister thought the Plaintiff was a pseudo-racist and/or was trying to divide the society to obtain a commercial advantage.”
It is therefore accepted before this Court, that up to March 1997, the Defendant held the Plaintiff in high regard and did not (could not reasonably) think or believe that the Plaintiff was either a racist and/or had an agenda which included dividing the society of Trinidad and Tobago, in order to obtain or maintain an economic advantage for himself or his concerns. It is also reasonable to conclude that the Plaintiff and the Defendant must have had some relationship since at least 1986, when they served together (albeit for a time) under the then NAR Government. The Defendant ought then to have formed some opinion of the Plaintiff, if not on a personal basis, then on a political and ideological basis. In a society such as exists in Trinidad and Tobago, given the public status of the Plaintiff and the positions he held prior to 1997, I have little doubt that the Defendant would not only have formed his own personal views about the Plaintiff, but would have sought and obtained information about the Plaintiff before appointing him Chairman of both the Prime Minister’s National Beautification Programme and of BWIA.
Yet these two prominent citizens, one the political leader of the ruling party and Prime Minister of the Country, the other a stalwart and founding father of national and regional media houses and champion of an independent and free press, have found themselves in bitter acrimony. The question to be answered is, why?
On the uncontradicted evidence before this Court, three incidents occurred between the Plaintiff and the Defendant, which have been offered by the Plaintiff in an attempt to explain, from his perspective, the probable reason(s) for this acrimony and the alleged defamatory remarks made by the Defendant of the Plaintiff.
THE GUARDIAN ARTICLE
The first incident occurred in 1996, prior to the Plaintiff’s appointment as Chairman of BWIA. It dealt with what I will call ‘The Guardian Article’. It seems that as a result of a headline in the Guardian Newspaper, the Prime Minister publicly declared that he would not speak to the Guardian Newspaper or its reporters, until they got rid of its editor, Jones Maderia. As a result of the Prime Minister’s declared position, the Plaintiff as CEO of CCN (and publisher of the Express Newspaper) together with the publishers of the Stabrock News of Guyana and the Nation Newspapers of Barbados, met with the Prime Minister to prevail on him to ‘back away’ from the position he had taken towards the Guardian Newspaper and its reporters. The evidence is that the Prime Minister agreed to withdraw from his stated position, provided a Press Council was established, which was agreed to by these three regional publishers.
There is no evidence before this Court of any acrimony between the Prime Minister and the Plaintiff arising out of this meeting. However, this incident is evidence of the Plaintiff’s preparedness to act in defence of the media, even when it did not involve his own media house or concerns, but that of a competitor.
THE SHIPRIDER AGREEMENT
The second incident dealt with what I will call ‘the Shiprider Agreement’. Some time before May, 1997, the United States Government sought to have signed with Caribbean Governments, the Shiprider Agreement. There is no evidence about the details of this issue except that of the Plaintiff. He recalled this evidence in the context of a question put to him as follows:- “The Prime Minister said, ‘we sign an agreement with the Americans to deal with drug lords, they condemn us’; did you or your newspaper/T.V. condemn the Prime Minister or his Government?” In response, the Plaintiff explained that neither he nor his newspaper/T.V. had condemned the Prime Minister or his Government, but had disagreed with them on the manner and timing of implementation of the Shiprider Agreement. In the Plaintiff’s words in cross-examination: “In my view the agreement with amendments was in the interest of everybody in the Caribbean. But that amendment could only have been realized by consulting with the other Caribbean agencies, so that we could act collectively, in our own best interests, while the Americans were seeking theirs.”
From the Plaintiff’s point of view, which again is unchallenged, the public debate and criticism of the UNC Government on the Shiprider Agreement had to do with the UNC Government’s decision that Trinidad and Tobago sign the agreement on its own, instead of acting in concert with the rest of its Caribbean partners.
As with the Guardian issue, there is no evidence of acrimony between the Plaintiff and the Defendant over this issue. However, it presented the Plaintiff as a ‘Caribbean Man’, who was prepared to openly criticize a Government if he believed that it was not acting in the best interest of the Region or the Country. As with the Guardian Article, so also with the Shiprider Agreement, the Plaintiff’s criticism of the UNC Government and/or the Prime Minister was on issues and policies.
THE GREEN PAPER ON MEDIA REFORM
The third issue, which has emerged in this case as the pertinent issue (with the clarification given by Senior Counsel for the defence at the beginning of the closing speech on behalf of the Plaintiff), dealt with what I will call the ‘Green Paper controversy’.
Some time in 1997 prior to the 7 th May, 1997, the UNC Government, through the Ministry of the Attorney General, published an undated Green Paper entitled “Reform of Media Law: Towards a Free and Responsible Media.” As with all Green Papers, it was put out for public consultation and debate. It was expressly stated therein:-
This Green Paper is issued as a consultation document. The Government wishes to receive representations from a wide spectrum of interested parties, and invites written submissions to be made on any or all of the proposals.
THE PLAINTIFF’S SPEECH – 7 TH MAY, 1997
On the 7 th May, 1997, on the invitation of the Trinidad and Tobago Publishers and Broadcasters Association (TTPBA), the Plaintiff delivered a speech on the Reform of the Media Law Green Paper. In the Plaintiff’s opinion, it was this speech of his that ignited a national and regional uproar against the UNC Government’s said Green Paper and culminated in the Prime Minister’s unjustified defamation of his character. Indeed, when Senior Counsel for the Defendant eventually agreed to clarify his defence (as aforesaid), he identified this speech of the Plaintiff on the 7 th May, 1997 as the attack on the Defendant (and his UNC Government), to which the Defendant was responding when he made the alleged defamatory remarks about the Plaintiff.
In the Plaintiff’s speech, the Plaintiff was severely critical of both the Green Paper itself and of the UNC Government which had published it. The full text of that speech was tendered in evidence. I think it is relevant to quote from the text of that speech for the fact of what was spoken.
The introduction of the speech was historical. It outlined the emergence of the TTPBA and of CANA and the Plaintiff’s involvement in same against a background of foreign owned and controlled media houses. Yet weaved into this introduction was a clue to the intent of the speech. Having recalled the opposition from one Tom Sherman of the Jamaican Gleaner to the establishment of CANA, the Plaintiff stated:-
Tom simply did not believe that Caribbean journalists could develop the strength and integrity to resist the interfering hands of Caribbean Politicians. He was convinced that a Caribbean News Agency without Reuters would have become a propaganda arm of the Governments of the region.
But, you know, the truly extraordinary thing about all this, is, that his concern about how far Caribbean Politician’s would go to try to control the press was nearly proven right. Were it not for the forthrightness of J.C. Proute who then worked in Jamaica, a Machiavellian plot conceived by Mr. Burnham of Guyana and promoted to win the support of the Jamaican Government would have succeeded in planting an agent of the Guyana Government as the first Chairman of CANA with enough support on the Board to ensure that all criticisms against Caribbean Governments were muted.
From that beginning, the Plaintiff went on to state the case he intended to make:-
I simply thought I should begin, by reminding you, of the tremendous struggle which had to be mounted by the Caribbean Press in the seventies to secure the Press Freedom we now enjoy. Then, we might usefully address whether there are similarities in the circumstances which moved the Caribbean Publishers and Broadcasters Association from a lethargic, fossilized condition to an aggressive defender of Caribbean press freedom and the circumstances which exist in Trinidad and Tobago today.
Does a serious threat exist to Press Freedom? For the first time since the period of the seventies, I am satisfied that it does. Fortunately the framers of our Constitution were wise enough to provide for protective and entrenched laws in our Constitution. There is, also, a climate of adventure where Politicians who may have forgotten the events of a decade or two ago and the bitter lessons learnt by some of their Caribbean colleagues are testing to find our how far they might succeed in breaking the independent spirit of the media in this country.
Next, the Plaintiff launched into his criticism, described by Senior Counsel for the Defendant as ‘an attack’, of the Green Paper and of the UNC’s motive for introducing same:-
Unfortunately there is an abundance of evidence to confirm that view. The most recent incident was the totally absurd proposition that because TV6 produced a series which sought a public response to campaign promises, punitive action should be taken against the Company by taking an additional fifteen minutes in prime time, thus eroding its advertising revenue and indeed the revenue of TTT as well. Not only was this crude and petty, but it becomes an unmistakable signal when it comes from the same Government, albeit another Ministry, which puts out a Green Paper on “Reform of Media Law Towards a Free and Responsible Media”, that says in paragraph 1.3A “The law should provide the media with machinery for accessed information and for it to be encouraged to expose corruption and malfeasance while at the same time providing the Government with power to punish or stop media behavior which imperils national security or undermines the democratic fabric”.
What on earth does undermining the democratic fabric mean? Who decides what it is? The Government of course, if it is to be provided with the power to punish when fabric is undermined.
Little imagination is required, to see the connection between the thinking which led to the action taken against the TV6 Referendum programme and the clause in the Green Paper to which I have just referred.
He continued:-
Now I come to what I consider the fundamental proposition of the Green Paper. Clause 1.3A opens with the statement, and I quote “a Government’s job is to exercise power as elected politicians think best and the media’s job is to criticize them for any perceived mistake in that exercise. The law should hold the balance and enable both estates to do their jobs with creative tension between them”.
Apart from the inelegance of some of the language, my reading of chapter 1 and the enshrined rights of our Constitution suggests to me that there was never any intention that new laws should be created to hold a balance between Politicians and the media as stated in the Green Paper. The enshrined rights are clear and unambiguous. They are clearly thought through. Why should we now introduce new law to hold the balance and generate “creative tension” as the Green Paper describes it. This opens the way to institutionalize the abuse which I have just described.
The reality is, that the Press has an untrammeled right to publish which has been enshrined in the Constitution of this country. That right is subject to the laws of libel, which admittedly require updating. But that is a far cry from writing new law which introduces punitive clauses for vague and implausible reasons, like “undermining the democratic fabric”.
The Plaintiff then outlined the Fundamental Freedoms enshrined in the Constitution, and posed the following question:-
The need to enact new law to generate “creative tension” between the individuals protected under these enshrined rights and the Government has never arisen. If anyone thought that there was an infringement of any of these rights, they were, and remain free, to test them in the courts. What, therefore, are the implications of introducing new law which even at this preliminary stage proposes to place controls in the hands of Politicians which they never had before and which clearly the Constitution never designed them to have.
The Plaintiff answered his own question, by citing extracts from a published and unchallenged (he claims) Aide Memoire prepared by him following a meeting on the 9 th February, 1996 between a team of Caribbean Publishers (including the Plaintiff), and the Prime Minister, the Attorney General and the Minister of Information, at the time of the Guardian Article/incident.
The full text of the Aide Memoire cited is as follows (I have quoted them in extenso because they are relied on by the Defendant in his defence of ‘reply to an attack’):-
Extract One – a quotation from the Prime Minister – “Are you saying that the press has a right to publish when it is mischievous, when it is behaving in a corrupt manner, when it is encouraging racism and doing general harm to the country?” I responded by pointing out to the Prime Minister that the press had an untrammeled right to publish. This exchange seeking to put words into our mouths occurred on at least four or five occasions during the meeting, which lasted for just over two and one half hours. At one point he stated that he was going to publicly quote the unlimited freedoms I was demanding for the press, but on each occasion the same response was given of the untrammeled right of the press to publish. Unquote.
Extract Two – “In another exchange with the Attorney General the Attorney General claimed that the press was so corrupt that he knew that the Express Editor had printed a certain headline because he had been ordered to do so by a PNM Senator. He identified the person as Keith Smith. I responded to him that I absolutely refused to believe that charge”. No one has ever expanded on that allegation which incidentally Mr. Smith has denied outright.
Extract Three – “The Prime Minister also referred to the Guardian’s chutney headline and argued strongly that it was racist. The writer denied this and pointed to the different interpretations which could be placed on the headline”.
Extract Four – “In one of his harangues on racism he accused the Express of promoting racism, to which I responded that he was probably more responsible for promoting racism in Trinidad and Tobago than anyone else by his constant references to race where it did not exist. His response to this forceful denial was that if his Government introduced a committee on racial discrimination in this country, “you dead”. That was of course directed at the writer”.
Extract Five – “When we first appealed to the Prime Minister to back off from his position, he responded by telling us that he could go to the country and in ten meetings he could get the public on his side after he explained to them the abuses which had taken place. During this outburst we all offered to publish the abuses about which he complained in our newspapers. The Attorney General commented that local media generally ignored requests to publish corrections. These abuses which were supposed to be in a file which he held up, had occurred with all Trinidad media. It was pointed out to him in response, that Forbes Burnham had tried it in Guyana, Maurice Bishop had tried it in Grenada, Eric Williams had attempted it in his own style in Trinidad and even Michael Manley at one stage attempted it in Jamaica before he became wise enough to amend his position and they had all failed to carry the public with them. The Prime Minister’s response was that “he would succeed”.
The Plaintiff then stated:-
There are many other relevant extracts in that Aide Memoire which could be used, but in essence they all make the same point. It is the Government’s objective that the freedom to publish or broadcast must be constrained, not only by the laws of libel, but by the judgment of Politicians about what in their view is mischievous, what in their view is corrupt, what in their view is doing harm to the country, what in their view is racism and at the end of the day, this can all be bunched, as the calypsonians say, under the rubric of undermining the “democratic fabric of the society”.
Mr. Chairman, when the mandate of the Constitution to publish is read in conjunction with the clearly stated intention of the Government to contain criticism which in its view, is harmful, then the real purpose of this legislation becomes clear.
Interject a new law. Threaten punitive action. Intimidate the meek and break the spirit of those who would otherwise criticize vigorously. As you are aware, Mr. Chairman, it was with some serious reservations that I finally accepted your invitation to speak to this gathering today. But candidly, I am indebted to you. I had not read the Green Paper until I accepted your invitation. Now that I have done so, I consider it an alarming document and one which must be vigorously resisted.
Notwithstanding its pious protestation that “no one need to be alarmed at any of these proposals: they must first be talked through with those they will affect”. I am convinced that the proposed legislation is really designed to give effect to the threats and the state of mind exposed by the Government which emerged from the exchanges with the three-man team of Caribbean Publishers a little more than one year ago.
This then was at the heart of the Plaintiff’s opposition to and criticism of the Green Paper on Reform of Media Law. However, it is clear from the text of the Plaintiff’s speech, that this criticism was not by any measure mild mannered.
In my opinion, the Plaintiff’s was a biting criticism of both the Green Paper itself and the UNC Government that proposed it. The strength of language used in the conclusion of the Plaintiff’s speech speaks for itself:-
We are told at the beginning of paragraph 1.4 that the purpose of the Green Paper is to address the issue “does the law serve the principle of Freedom of the Press and Freedom of Expression as well as it should”. That is what it says. Yet, the document completely ignores a number of specific recommendations which were made to the Attorney General of this country and to Regional Attorneys General for the amendment of the Libel Laws. Those recommendations emerged from a meeting of Caribbean Publishers who met in Port of Spain in February to consider amendments which were viewed as relevant to existing law. With the kind assistance of the Attorney General of Trinidad and Tobago, a delegation met the following day with the assembled Attorneys General, who without giving a commitment all appeared to concede that there was strong validity to the arguments put forward. Yet, the Green Paper which tells us that its objective is to improve and update the law has completely ignored the recommendations which have been submitted for modernized and fairer libel laws.
The true measure of the threat with which we are confronted, is the devious manner in which the attempted emasculation of press freedom has been framed. The Green Paper is a combination of irrelevancies such as licensing of journalists which has never been an issue in Trinidad and Tobago, pious statements clearly designed to create a false sense of security, inaccuracies, giving assurances about clauses in the Jamaican Code of Ethics which do not exist, and cleverly designed machination.
It is philosophically wrong. Machavellian in content and designed to insidiously erode one of the important checks and balances in our country. Indeed, the whole thrust of the argument – that media coverage of the Government is unfair or unbalanced has been found by the majority of people to be groundless and not credible. This was the clear finding of the recently concluded Sara Poll.
I have read all of the published criticisms against the various clauses of the Paper and agree with most of them. But it would be a mistake to address the issues raised in this Paper as separate proposals. They are in my view all part of a design to erode press freedom and the intent of the document when read closely, is unmistakable. This Green Paper must go no further. It must not be turned into a white, yellow or red paper and certainly not into legislation.
Mr. Chairman, the timing of the revitalization of the Trinidad and Tobago Publishers and Broadcasters Association is fortunate. You urged me to speak today and I have done so. Now I urge you and your Organization to mount the widest possible campaign to oppose this deviously framed and offensive Green Paper.
I would like to end by making an appeal to the Prime Minister for it is clear to me that the primary objective of this document, is to introduce punitive action against the media when the political directorate considers it desirable to do so: An objective which is consistent with the views expressed to the three Publishers who met him more than one year ago.
Please reflect carefully, Prime Minister, before you permit this dangerous Green Paper to go any further.
I have no doubt that this speech was carefully prepared by the Plaintiff and intended to awaken all ‘lethargic, fossilized’ media concerns and the wider public, “to mount the widest possible campaign to oppose this deviously framed and offensive Green Paper”. It was a call to arms by a stalwart champion and highly decorated defender of Press Freedom, on a perceived attempt by the UNC Government of the Defendant to “try and control the press” under the guise of legislative reform. In the words of the Plaintiff himself:-
I regret the necessity to have spoken so strongly on this matter, but those of us who care about a Free Press will ignore the implications of this document at our peril. The media has been charged by our Constitution to function as an important check and balance in our society and we must do all in our power to ensure that we play that role.
I thank you Mr. Chairman, for the opportunity to play my part in discharging that responsibility.
It is worth noting that the Plaintiff was cross-examined extensively and rigorously on his criticism of the Green Paper in this speech. His responses in cross-examination were consistent with the positions articulated in the said speech itself (the text of the speech was only produced and tendered in evidence after cross-examination).
THE GREEN PAPER CONTROVERSY
This speech of the Plaintiff was widely reported and resulted in ‘a comprehensive outcry’ (in the Plaintiff’s words) against the Green Paper. In fact, following the Plaintiff’s said speech, there erupted a raging controversy between what can best be described as the collective local media and the UNC Government (with a focus on the Prime Minister and Attorney General) over the Green Paper.
The Plaintiff had collected and kept the newspaper editorials, reports, articles and letters related to the Green Paper controversy. They were tendered into evidence as ‘KG – 1’ (editorials), ‘KG – 2’ (Express newspaper clippings) and ‘KG – 3’ (other newspaper clippings). These clippings total sixty (60) in number. The number of clippings between the time of the Plaintiff’s said speech and the reporting of the Defendant’s alleged defamatory remarks about the Plaintiff (made on the 30 th May, 1997), total about thirty-one (31) over a twenty-seven (27) day period (which do not reflect television and/or radio coverage and discussion).
A selection of the clippings’ headlines, which give some idea of the factual flavour of the debate between the 7 th May, 1997 and the reporting of the Defendant’s challenged speech, follows:-
8.5.1997
Express Newspaper ‘ Gordon: Green Paper must go no further .’
(News reporting)
‘ Attorney General calls on CCN chairman to retract statements .’
(News reporting. Attorney General quoted as charging Gordon with having “a personal vendetta against the Government of national unity” and as making statements which were “untrue, wicked, malicious and calculated to mislead the public”).
Newsday Newspaper ‘ Media head condemns Green Paper .’
(News reporting).
9.5.1997
Newsday Newspaper ‘ The people’s right to express views .’
(Editorial. Criticizing the Attorney General’s objections to Gordon’s criticisms of Green Paper).
Express Newspaper ‘ A paper by a greenhorn .’
(Editorial. Criticizing the Attorney General’s objections to Gordon’s criticizing of Green Paper).
10.5.1997
Guardian Newspaper ‘ Dangerous Green Paper .’
(Editorial).
11.5.1997
Express Newspaper ‘ Paved with good intentions .’
(Article, critiquing what “is so carefully hidden in this Green Paper”).
‘ Musings on the media .’
(Article. Critiquing, inter alia, “the consistent pattern of intimidation of the media being engaged in by the present regime”)
12.5.1997
Guardian Newspaper ‘ Attorney General meant to thank Gordon says Panday .’
(News reporting).
‘ Mark welcomes comments on Green Paper .’
(News reporting. “Mark” refers to the Minister of Public Administration and Information).
Express Newspaper ‘ Prime Minister says thank you to Gordon .’
(News reporting. Prime Minister quoted as thanking Gordon for his comments on the Green Paper, since “that is what will produce the clash of ideas out of which we shall distill what is acceptable to the society”).
16.5.1997
Guardian Newspaper ‘ The Green Paper – to repress free expression .’
(Article. Criticizing the Green Paper).
Express Newspaper ‘ Green Paper a frightening Proposal .’
(Article. Criticizing the Green Paper).
17.5.1997
Newsday Newspaper ‘ Chamber concerned about Media Green Paper .’
(News reporting. Reference to The Chamber of Industry and Commerce).
18.5.1997
Newsday Newspaper ‘ What is the Green Paper good for ?’
(Article. Criticizing the Green Paper and the Attorney General’s motives for publishing same).
Catholic News Press freedom in the light of faith
(Editorial. Supporting those who have challenged the Green Paper).
19.5.1997
Independent Newspaper ‘ Green Paper with a reddish tinge .’
(Article. Criticizing the Green Paper).
Express Newspaper ‘ Enter the press police .’
(Article. Criticizing the Green Paper).
23.5.1997
Independent Newspaper ‘ More lies, half-truths and innuendoes .’
(Article).
Newsday Newspaper ‘ TT Media must hold its ground .’
(Guest editorial. From The Weekend Nation, Barbados, giving support to the Trinidad and Tobago press “in their struggle to resist the proposals contained in this insipid plot”).
26.5.1997
Newsday Newspaper ‘ Attorney General: Only if public objects will Green Paper on media be withdrawn .’
(News reporting).
‘ Panday to take media fight to the public .’
(News reporting).
27.5.1997
Guardian Newspaper ‘ Jamaican Media join Green Paper debate .’
(News reporting).
Express Newspaper ‘ Jamaican media join Green Paper debate .’
(News reporting).
‘ Media against oppressive laws .’
(Editorial. Criticizing Green Paper and the Attorney General).
28.5.1997
Independent Newspaper ‘ The First Amendment .’
(Article. Criticizing the “Attorney General’s Green Paper”).
Express Newspaper ‘ The Green Paper which makes us see red .’
(Article. Chamber of Industry and Commerce, criticizing the Attorney General’s response to Gordon’s speech on Green Paper, and expressing reservations about the Green Paper itself).
30.5.1997
Express Newspaper ‘ Attorney General attacks the media .’
(News reporting. Quoting the Attorney General as criticizing sections of the media who did not want the Green Paper because it called for regulation of programmes which featured sex and violence; and who opposed the Shiprider Agreement and the UNC Government’s efforts to stop the drug trade; and those “who did not want Africans and Indians to unite”).
31.5.1997
Newsday Newspaper ‘ Newsday’s Chief: It’s a move by Government to control the media .’
(News reporting).
In my opinion the following are noteworthy. As a consequence of the Plaintiff’s speech, there was reported an immediate and vicious personal criticism of the Plaintiff by the Attorney General. Within a week, amidst reported widespread criticism of both the Green Paper and the Attorney General, the Prime Minister and the Minister of Public Administration and Information apologised for the Attorney General’s statements and thanked the Plaintiff for his comments and welcomed the Plaintiff’s comments, respectively. Notwithstanding this, there was reported an unceasing and growing criticism from all quarters of society of the Green Paper and of the UNC Government’s motives for introducing it, supported by media voices in Barbados and Jamaica. On the very day of the Prime Minister’s impugned address, the Attorney General was reported as attacking the media, identifying, inter alia, opposition to the Shiprider Agreement and resistance to racial unity.
THE PRIME MINISTER’S ADDRESS - 30 TH MAY, 1997
It is in this context that the Prime Minister delivered his feature address at Chandernagore, in the County of Caroni, on the inaugural celebration of a national holiday proclaimed by the UNC Government to be known as ‘Indian Arrival Day’ and to be held on the 30 th May, 1997. Its intention was to mark the first arrival in Trinidad and Tobago in 1845 of indentured labourers from India.
Though in the Statement of Claim only a part of the Prime Minister’s address was challenged, it was agreed before this court, and rightly so, that the entire address be seen and heard (as recorded on video tape) and a transcript tendered into evidence.
Following is the full text of the address delivered by the Prime Minister on the 30 th May, 1997 as aforesaid:-
Councillors, brothers and sisters, yes Pundit, I do remember the old days when my hair was black. That was starting 1972, twenty-three years ago, twenty-five years ago when Pundit used to pray for me as we carried out this tremendous struggle for the dignity and the right of sugar workers to also lead a decent life. I am happy to be here today to celebrate with you Indian Arrival Day. Your struggle to have May 30 th declared a Public Holiday was long and hard, but you have won. In a similar way, the struggle of the Shouter Baptists to have March 30 th declared a Public Holiday was also long and hard, but they too have won, and I am honoured and pleased that it was my Government of National Unity that made both their victories possible. My brothers and sisters, these struggles as well as the struggle for Emancipation Day are symbolic of one thing, and one thing only, that is the desire of a people to end their feeling of alienation and to fulfil their longing for a place in the sun to feel wanted, to feel that they belong, to be appreciated. This longing is a reflection of the nature of our plural society, our multi racial, multi ethnic, multi cultural society and our failure in the past to recognize this fact and deal with it and to treat our people equally and with equity as being the single most debilitating factor in our efforts to develop this society socially, politically and economically. That is why I have committed my Government irrevocably to the ideology of National Unity. National Unity is the most critical issue facing our nation and our society at this point in time. Ours is a most divided society, a society in which each group is pulling in opposite directions, each concerned with its own interests and not the National interest. You have businessmen on one side, labour on the other. Workers – employers. Indians, Africans, Chinese, Christians, Buddhists, Sikhs urban against rural, landlord against tenants, what have you-you name them and we have divided them.
Unless we can unite all our people with a common vision for the society, all pulling in the same direction, we shall not move forward and we shall lose the opportunity to use our resources, including our human resources, to create the paradise that this country was meant to be. As you join . . . . As you join me in this crusade of National unity you will meet many people who do not want National unity, they are the ones who in the past have benefited and thrived on maintaining division of society. I call them the pseudo-racists. And I call them Pseudo Racists because they are not real racists. Real racists are people who look after their race. These fellas use race only to look after they self. They are pseudo racists. So I say the pseudo racists who have divided the society to maintain political power and even now are doing so in the hope of political survival. The Ken Gordons who want to maintain his monopolistic advantage over his competitors in the media. My brother and sisters, they come in many shapes and sizes, they do not want change, they continue to resist national unity. We pass laws to deal with criminals, they condemn us, we sign an agreement with the Americans to deal with drug lords, they condemn us, we try to change URP. When they spoke of that, both . . . both persons . . . and teacher . . . We try to change URP, they accuse us of racism, if someone gets fired from a State enterprise because he is corruption . . . because he is corrupt, they scream, they doh want change, they want to continue in the old ways.
My brothers and sisters, I know that you long for change, that is why you put me here. And I promise you that I will not succumb to the pressure of the dividers in my determination to effect meaningful change that will bring about an improved quality of life for all our peoples, and the first struggle is the struggle for equality and equal treatment. Pundit who spoke earlier on today, and who spoke of discrimination of disbursement of funds from a particular Ministry. I want to tell you that yes that matter has been drawn to my attention, that I had a meeting with the Secretary General of the Maha Sabha a few days ago in which a similar complaint was made. If that complaint is correct, that it is under this Government they have begun discrimination, then all I could say is that there are some people in this society who are doing that deliberately to give the UNC a bad name. But I promise you that I will never permit inequality to exist in this society. I know it is no compensation for your complaint but I am pleased to announce, as indeed, Minister Manohar did, that we have succeeded in getting Caroni to release a parcel of land comprising 10,000 square feet in Ramdeen Trace a little lower down to the Ministry of Social Development for the purpose of constructing a community centre.
My brothers, I have no fear that I will succeed in the struggle for national unity. I know that I shall succeed because I have your prayers. As we celebrate Indian Arrival Day or Emancipation Day or Baptist Liberation Day, let us convert these celebrations into a crusade of love and National unity in this blessed land of ours.
Thank you, and God bless you.
(The words in italics are the impugned portion of the Prime Minister’s address).
Having seen and heard this address by the Prime Minister, the following observations are in my opinion relevant. First, the address itself was about ten (10) minutes long. Second, throughout the address, it appeared that the Prime Minister was either reading from a prepared text or referring to written notes. In particular, it appeared that when the Prime Minister came to deliver that part of the address which referred to the Plaintiff, he was reading or referring to written notes. Seeing the Prime Minister deliver the address and following in the transcript, I conclude that he was more likely reading a prepared text. This, not only because one could see paper on the podium from which he was obviously reading, but also because the areas in the transcript where the fluency of delivery was broken or lost and recovered, coincide with the occasions when the Prime Minister was in fact looking up from the podium and at his audience. Third, there were three microphones directly in front of the Prime Minister, attached to the podium from which he was delivering his address and into which he was speaking. Fourth, one of those microphones had attached to it and clearly visible a ‘TTT’ identification sign. Fifth, the actual beginning of the speech was not recorded. Sixth, I have no doubt that given the intonations and gestures of the Prime Minister and the content of his address, that the Prime Minister’s address was carefully crafted and was delivered in a deliberate and calculated manner.
Before returning to the Plaintiff’s evidence, it is appropriate at this stage to deal with the evidence of the witnesses called on behalf of the Plaintiff.
MR. ANTHONY FRAZER: TTT COVERAGE OF THE PRIME MINISTER’S ADDRESS
Mr. Anthony Frazer is a journalist and was the head of news at TTT in May, 1997. His unchallenged testimony was that there existed at the time, a particular protocol in relation to events in which the Prime Minister was involved. This protocol was that on a weekly basis, the Prime Minister’s office would send a weekly schedule of the Prime Minister’s activities to TTT. Further, that “the itinerary was accompanied by a note (from the Prime Minister’s office) on each assignment, indicating whether there should be full coverage or not of the particular event.” Full coverage meant that TTT had the option to cover the entire event with both TV cameras and reporters. If there was not to be full coverage, “the notice would say: ‘photo opportunity only’.” Mr. Frazer testified that TTT did full coverage of the Prime Minister’s address at the Indian Arrival Day celebration at Chandernagore on the 30 th May, 1997, consistent with the assignment note from the Prime Minister’s office.
Mr. Frazer also testified that a story was carried of the Prime Minister’s address on the 7.00 p.m. Evening Newscast (“Panorama”) on TTT on the 30 th May, 1997. And that subsequently, on the following day and on two other occasions, ‘soundbites’ from the Prime Minister’s address were carried on TTT. The first ‘soundbite’ was identified by Mr. Frazer after viewing the video recording of the Prime Minister’s address. Mr. Frazer was clear that the soundbites carried on the 30 th May, 1997 and on the latter two occasions, included the references to pseudo racists and to the Plaintiff in the Prime Minister’s address. The video of the TTT telecast shown on the Panorama news on the 30 th May, 1997 was viewed by the court and admitted into evidence together with a transcript of the relevant news item. The text of the TTT Panorama news broadcast of the 30 th May, 1997 follows:-
Announcer:
Later he would go on to plant this tree to commemorate the 152 nd Anniversary of Indian Arrival, but in his speech which was the highlight of the function, Prime Minister Panday would condemn those who persist in sewing the seeds of division from which he says they have benefited and thrived in the past. He says these are the people who do not want National unity, the pseudo racists, he calls them.
Panday:
And I call them pseudo racists because they are not real racists. Real racists are people who look after their race. These fella use race only to look after they self so they are pseudo racists. So I say the pseudo racists who have divided the society to maintain political power and even now are doing so in the hope of political survival. The Ken Gordons who want to maintain his monopolistic advantage over his competitors in the media. My brothers and sisters, they come in many shapes and sizes.
Announcer:
Mr. Panday tells his audience that these are the people who do not want change and continue to resist National unity.
Panday:
We pass laws to deal with criminals, they condemn us, we sign an agreement with the Americans to deal with drug lords, they condemn us, we try to change URP, they accuse us of racism, if someone gets fired from a State enterprise because he is corruption . . . Because he is corrupt, they scream they doh want change, they want to continue in the old ways. But my brothers and sisters, I know that you long for change, that is why you put me here.
Announcer:
The Prime Minister promises that he will not succumb to the pressures of the dividers in his determination to effect meaningful change that will bring about an improved quality of life for all the people of Trinidad and Tobago, and the first struggle in this quest he says” is the struggle for equality and equal treatment”.
Mr. Panday assisted in presenting gifts to several senior members of the Chandernagore Community who have made significant contributions to the development of the community and who could all recall descendants among the first East Indians to arrive in this country. A highlight of the function was the arrival of this representation of the Fatel Razak. The ship that is said to have brought to these shores the first indentured labourers from India in 1845.
Errol Pilgrim, TTT News.
It is clear from this video recording that the TTT television cameras were following the Prime Minister during the course of the celebrations at Chandernagore that day.
MR. RICHARD LORD
In May, 1997 Mr. Richard Lord was a journalist employed with the Independent Newspaper. On 30 th May, 1997 he had been assigned to cover the first Indian Arrival Day celebrations at Chandernagore at which the Prime Minister was the feature speaker. He recalled seeing both a TTT camera, cameraman and a reporter present at the celebrations. He testified that the TTT camera was situated between 15 – 25 feet from the Prime Minister. From the video footage shown to this court, it is a reasonable inference that the camera was located in front of the Prime Minister. Mr. Lord estimated that between 200 – 300 people were in attendance during the Prime Minister’s address.
When asked in his examination in chief whether the Prime Minister had said anything of note that evening, his response was:-
Answer: He said many things of note. He spoke of opponents, people seeking to prevent him from achieving national unity. He spoke of different sections of society divided.
Question: Anything stood out in your mind.
Answer: He spoke of pseudo racists in the country. He said, people like . . . I think his exact words were:-
“The Ken Gordon’s”. He went on to define pseudo racists.
Mr. Lord then identified the news report published in the Independent Newspaper of 2 nd June, 1997 (“Prime Minister calls Gordon ‘pseudo racist’ ”) as written by him.
In cross-examination, Mr. Lord was probed about his recollection of the Prime Minister’s address. His testimony in part was as follows:-
Question: Do you recall the words he used in relation to ‘The Ken Gordons.’
Answer: I don’t recall words exactly at this time.
Question: Say don’t recall words exactly, do you have some recollection.
Answer: He (Prime Minister) was describing what he (Prime Minister) meant by ‘pseudo racist’, in that context he mentioned ‘The Ken Gordons.’
Question: What did he say about ‘The Ken Gordons’.
Answer: He said that they were people that were trying to prevent national unity in the country in order to achieve their own gain.
Question: So he said . . .
Answer: The Ken Gordon’s were the people in the country who were against national unity and were against it in order to achieve their own gains.
This evidence of Mr. Lord is noteworthy, because he was one of those present at Chandernagore, on assignment as a journalist and who saw, heard and reported contemporaneously on the Prime Minister’s address that day. For Mr. Lord, what stood out about the Prime Minister’s address and was newsworthy, is set out not only in his testimony above, but also in his news report of the 2 nd June, 1997.
EVENTS FOLLOWING THE PRIME MINISTER’S ADDRESS
Returning to the Plaintiff’s evidence, his story unfolded as follows. On the morning of the 31 st May, 1997 at about 5.30 a.m., he was walking around the Queen’s Park Savannah, Port of Spain, when a contemporary of his shouted out to him: “Boy, Panday call you a big racist!” The Plaintiff then made it his business to find out the details, and learned of the TTT Panorama telecast referred to above.
Following the TTT broadcast, the newspapers carried reports of the Prime Minister’s address. The following is a summary of those reports.
1.6.1997
Sunday Express
Front page caption ‘ Panday attacks Gordon .’
See page 3.
Page 3 report ‘ Panday attacks Gordon ’ (headline).
Quoting in full the impugned part of the Prime Minister’s address.
Sunday Newsday
Page 7 report “ Panday hits ‘pseudo racists ’ ” (headline).
Quoting in full the gist of the impugned part of the Prime Minister’s address, but omitting the line “The Ken Gordons who want to maintain his monopolistic advantage over his competitors in the media,” and substituting in its place the comment: “After he mentioned a certain name.”
2.6.1997
The Independent
Page 5 report “ Prime Minister calls Gordon ‘pseudo racist ’ ” (headline).
Quoting in full the impugned part of the Prime Minister’s address.
3.6.1997
Guardian Newspaper
Page 1 report ‘ Gordon to resign over racism charge ’ (headline).
Reporting that the Plaintiff intended to resign from BWIA and that the resignation came in the wake of remarks by the Prime Minister at an Indian Arrival Day function in central Trinidad, in which Gordon was labelled a ‘pseudo racist’.
These articles were all accompanied by bold dramatic headlines which would no doubt have caught the attention of readers. Further, the articles themselves, though they did not repeat the Prime Minister’s speech verbatim, captured the gist of it and in particular reported fairly accurately the impugned part of it.
The Plaintiff testified that these four (4) articles and the TTT ‘Panorama’ coverage of the Prime Minister’s address, “led to considerable controversy in the media for a considerable time.” Further, that there was discussion not only in the local newspapers among columnists, but also on radio talk shows and elsewhere in the region. The Plaintiff kept several of the newspaper clippings dealing with the controversy, which were tendered in evidence.
In my opinion, these clippings verify beyond any doubt the widespread extent of the controversy and discussion that erupted over both the Green Paper itself and the Prime Minister’s perceived branding of the Plaintiff as a ‘pseudo-racist’, in his address on Indian Arrival Day.
This discussion was not limited to Trinidad and Tobago, but spread through the Caribbean. It attracted the attention of the Caribbean Association of Media Workers (Camwork), the Paris based World Association of Newspapers, the Jamaican media, the Barbados media, the New York media, the Media Association of Trinidad and Tobago (MATT), the Oilfield Workers’ Trade Union (OWTU), the Public Relations Association of Trinidad, the opposition Peoples National Movement (PNM) and the National Alliance for Reconstruction (NAR), to identify a few.
Though it is for this Court to determine whether or not the Defendant defamed the Plaintiff, it is not irrelevant to the issues that have to be determined, what the nature of those discussions were and the extent of the perpetuation of the perceived labelling of the Plaintiff as a ‘pseudo racist’ by the Prime Minister.
Thus, for example:-
3.6.1997
Independent Newspaper (Editorial).
‘ An unjustified attack on Gordon’ (headline)
Prime Minister Basdeo Panday has added a new phrase to our political lexicon, that of pseudo-racist.
He defines a pseudo racist as a person who opposes his concept of ‘national unity’ and who used racism not to promote his own race, but to look after his own interests. He characterised Ken Gordon, Chairman of the CCN Group as a pseudo racist, who wants “to maintain his monopolistic advantage over his competitors in the media.”
The charge of monopolisation by Panday against Gordon is patently false in that there is no commercial sector as fiercely competitive as the media. With four daily newspapers, six weeklies, three network TV stations, two owned by the state, at least 12 active radio frequencies, satellite TV, and four cable companies, this sector is anything but monopolistic. To pejoratively characterise Gordon as being monopolistic in intent, is neither a truth, a half-truth nor an innuendo, but a brass-faced lie.
“Pseudo-racists have divided the society to maintain political power, and even now are doing so in the hope of political survival,” Panday said.
Panday’s characterisation of Gordon as a pseudo-racist in the wake of his criticism of the Green Paper is totally unjustified. Gordon has responded by resigning his appointments to State-controlled boards and a threat of legal action.
The race bogey is now irrevocably out of the closet and rampantly being paraded for political advantage.
4.6.1997
Guardian Newspaper (Editorial)
‘ Puzzling attack’ (headline ).
INSTEAD of assuaging the firestorm of protest aroused by his government’s Green Paper on the media, Basdeo Panday has succeeded only in fanning the flames by his branding of Ken Gordon as a “pseudo racist.”
Speaking at the function, Panday launched an attack on “pseudo racists” who, he said, are persons who use race “only to look after themselves.” Referring to Gordon, he added: “they come in many shapes and sizes,” people who do not want change and continue to resist national unity.
What did Gordon, who is Chairman of CCN and BWIA, do to deserve this dishonourable mention? It could only have been his resounding condemnation a few weeks ago of the Green Paper which he dubbed “an alarming document, one which must be vigorously resisted.”
It is unfortunate that the Prime Minister should choose to raise the theme of racial divisiveness on the occasion of Indian Arrival Day observances, but it is even more unfortunate that he should single out Gordon as one of the culprits.
In trying to solve the puzzle of Panday’s outburst, one is forced into a deep sense of apprehension. Its only motivation appears to be an intolerant annoyance at Gordon for daring to be openly critical of Government’s proposals for reforming the laws governing media operations in the country. Such an annoyance must assume an ominous hue when it is considered that the Green Paper is simply a document published by the Government specifically for the purpose of eliciting public comment. Why should Gordon be so targeted for simply expressing his view?
Gordon is not only the head of a major media house in TT; he is also the man chosen by the Government to chair the board of the troubled “national airline” and to lead the Prime Minister’s National Beautification Programme. If both the Attorney General and the Prime Minister can now turn so vehemently against him for responding to the invitation to comment on the Green Paper, then something must be desperately wrong.
6.6.1997
Independent Newspaper (article)
‘ The degradation of high office’ (headline )
The Attorney - General puts out a Green Paper on media reform, inviting public comment. Ken Gordon, unarguably the senior media personality in this country, declares his opposition to the Paper as a whole; whereupon a clearly - shocked Maharaj attacks Gordon personally and demands that he “retract” his comments. The media meet Mr. Panday at Piarco and ask him for his comments on his A-G’s demand, and the PM—just back from one of his “trips,” still wearing his “stateman’s” persona-responds as follows:
“(Maharaj) really meant to thank him, I think he (Maharaj) started off from the second paragraph. He must have meant to thank him. I am thanking him, and I hope everybody will comment on this.”
Now this nonsense, of course: one of Mr. Panday’s by-now famous “Witticisms” which, under inspection, turn out to mean nothing at all. But it is, on the surface at least-how to put this? Politically correct nonsense. Except that, less than three weeks later, there is Mr. Panday at an Indian Arrival Day function defining “a racist” in startling benign-sounding terms, as “one who takes care of his own race,” and then attacking Gordon as a man using race (a “pseudo-racist”) to maintain his monopolistic advantage over his competitors in the media.”
8.6.1997
Guardian Newspaper (article)
‘ We now see democracy UNC style’ (headline)
The malice evident in the prime minister’s unwarranted attack on CCN group chairman, Ken Gordon, and in particular his description of him as a pseudo racist is merely the most recent manifestation of a pattern. It is what this pattern portends that causes our concern. And once again an Indian Arrival Day platform was used. Mr. Panday tailors his remarks to his audiences and chooses his occasions with care. The deliberateness is patent to anyone who reflects upon these things.
Gordon rejected the Green Paper and called upon the prime minister to act decisively and withdraw it. He dismissed it as being devious, a combination of irrelevancies, pious statements designed to create a false sense of security, inaccuracies, philosophically wrong, Machiavellian in content and designed to insidiously erode one of the important checks and balances in our country.
A noticeably perplexed information minister and UNC chairman, Wade Mark, in whose presence Gordon’s speech was delivered, could only utter platitudes: “Mr. Gordon was reflecting, a strong viewpoint and I respect that - this government is always willing, to listen. We live in a very bubbling democracy and people have a right to express their views . .
Not so the Attorney General who, immediately after the news broadcast, called CCN and denounced Gordon as deliberately misleading the population. His comments, said Maharaj, were “wicked, malicious, untruthful and constitute a total irresponsibility to the media and to the population.”
The prime minister’s initial response, at Piarco, on his return from the summit with Clinton, was similar to Mark’s. He virtually apologised for Ramesh Maharaj’s vituperative outburst and thanked Gordon for his remarks since “that is what will produce the clash of ideas out of which we shall distil what is acceptable to the society.”
Could prime minister Panday have been really sincere in those remarks when so soon thereafter, ensconced in the emotionally compatible environment of an Indian Arrival Day function at Chandernagore, he launched a scurrilous attack on the same Ken Gordon, for the same speech, being careful to include his customary diatribe about racism, a charge he reserves for those he wishes to demonise?
Surely Mr. Panday must know that his own anti-Gordon remarks can only be interpreted as being intimidatory and designed as a message, not only to Mr. Gordon, but to all would-be dissenters.
11.6.1997
Independent Newspaper (editorial)
‘ Curb yourself Mr. Prime Minister’ (headline)
HARD UPON his startling attack on Mr. Ken Gordon as a “pseudo-racist”, the Prime Minister has delivered himself of another intemperate assault on unnamed opponents of his government (Unnamed except for the media, his perennial whipping boy).
No one, says Mr. Panday, will attack his government and escape unscathed.
24.6.1997
Daily Nation Newspaper (Barbados; article).
‘ Government – media relations’ (headline)
The bossman of Caribbean Communications Network, Ken Gordon, some how frequently manages to move to centre stage in a government-media dispute.
I have no flattering views of Mr. Gordon as any “champion of press freedom” in the Caribbean. But his right, like mine, to disagree with any government or corporate interest must be safeguarded.
However, I find it totally objectionable, deplorable the derogatory remark (‘pseudo-racist’) hurled at Mr. Gordon by Mr. Panday.
30.6.1997
Daily Observer Newspaper (Jamaica; editorial. Allegedly first published on June 5 th , and republished to coincide with a summit in Montego Bay, Jamaica, of Caribbean Community leaders).
‘ Mr. Panday’s folly’ (headline)
Mr. Panday published a green paper harbouring sinister motives of muzzling the press and its proposal has been rightly ciriticised by Mr. Ken Gordon, the head of the Express newspaper. Mr. Gordon has been dubbed a “pseudo-racist” by Mr. Panday. Whatever pseudo-racist means, coming from the prime minister it suggests intimidation on his part.
20.8.1997
New York Times International (United States of America; article accompanied by a photograph showing both Plaintiff and Defendant).
‘ High-Level Name – Calling Across the Racial Fence’ (headline ).
PORT OF SPAIN, Trinidad and Tobago- In the end, as one of this Caribbean nation’s leading intellectuals forlornly put it, “everything gets framed in terms of race here.”
The latest episode began when the Prime Minister, whose grandparents were indentured servants from India, called a prominent black businessman a “pseudo-racist,” and he answered by taking the Prime Minister to court.
For nearly three months, the dispute between Prime Minister Basdeo Panday and Kenneth Gordon has riveted and further divided this ethnically and religiously diverse country, raising issues of press freedom as well as of race and class relations.
It is clear to me, that whatever the truth of the contents of all of the above articles, the fact is that the general perception of the widest cross section of the community, including the international community, was that the Prime Minister had targeted the Plaintiff in his Indian Arrival Day address because of the Green Paper controversy and the Plaintiff’s criticisms of same; and that the Prime Minister had labeled the Plaintiff a ‘pseudo racist’ who deliberately used (‘misused’) racism to maintain a monopoly and advantage over competitors in the media business. On the evidence before this Court, the fact is that the link between the Plaintiff and ‘pseudo racism’ (racism) and his use of same in the media business, received the most widespread and sustained coverage and debate in the media throughout Trinidad and Tobago and abroad, for about three (3) months after the Prime Minister’s address on Indian Arrival Day on the 30 th May, 1997.
The Plaintiff testified that he ‘felt absolutely violated’ by the Prime Minister’s comments about him in his Indian Arrival Day address. In his own words:-
Answer: I felt absolutely violated. Having done no more than respond to an invitation extended, to comment on the Green Paper, I was aggressively attacked by the Attorney General on the evening I made the address (of the 7 th May, 1997) in the electronic media.
Question: Directing your attention to after Prime Minister’s speech.
Answer: The Prime Minister apologised publicly for the Attorney General’s attack, when the media approached him. Then some two (2) weeks later and inexplicably came the Prime Minister’s attack, denouncing me as the worse type of racist. And one whose conduct was akin to being an enemy of the country, by the way he described me. This left me embarrassed, deeply distressed and publicly humiliated.
When asked how did the media coverage after the Prime Minister’s address affect him, he responded:-
Answer: While the coverage was favourable, the fact is it was perpetuating the charge made. In some ways dialogue even got worse, because the Prime Minister then went on to say that no one who attacked his Government would remain unscathed. In overall terms it was all a very difficult period for me.
Indeed, this comment of the Prime Minister that “no one who attacked his Government would remain unscathed’, was not only unchallenged in the cross examination and in the evidence as a whole, but the fact that it was made also received wide media coverage in the context of the controversy between the Prime Minister and the Plaintiff over the Green Paper and the Prime Minister’s comments about the Plaintiff in his Indian Arrival Day address.
These then are the material facts in this case, in so far as they are relevant to all of the issues argued before me. However before I deal with the issues themselves, the following are also noteworthy.
First, as I have already pointed out, the Defendant chose to call no evidence and this Court has not had the opportunity of either seeing or hearing the Defendant. Second, in my opinion, the cross-examination of the Plaintiff and his witnesses did nothing to undermine their credibility or challenge their evidence. On the contrary, the cross-examination served to reinforce the evidence given on behalf of the Plaintiff as corroborated by the several documents tendered into evidence.
Third, in the context of the cross-examination, the Plaintiff was asked why he did not sue the newspapers that had published the impugned allegations about him. The Plaintiff’s response was as follows:-
Answer: In this instance I was not interested in getting after the people attempting to do their jobs. But with the source, the source of the deep hurt and what I considered the public scandal mounted against me. I also considered it very important to send a powerful message, to not only this Prime Minister, but to all Prime Ministers, that they are not above the law, and they too must respect the rights of the ordinary citizen of the country. That is why I did not think it fit, necessary or even desirable to go after the media in this matter.
Fourth, the Plaintiff as a consequence of the Prime Minister’s address and impugned comments, resigned shortly thereafter as chairman of both The Prime Minister’s National Beautification Programme and of BWIA.
Fifth, in re-examination, the Plaintiff explained that in Trinidad and Tobago in 1997, in addition to CCN’s media concerns, there were other competitors in the media business with equal status, to wit: Trinidad Broadcasting Company (TBC) which was part of the McAl group conglomerate, which owned at the time one newspaper (Guardian) and three (3) radio stations; CL Financial (CLICO), another large conglomerate, which owned controlling shares in the Independent newspaper and owned two (2) radio stations and also had an interest in the CCN group; and the National Broadcasting Network (NBN), which owned one (1) television station (TTT) and two (2) radio stations, and which was a State Co-operation, owned and controlled by the Government (confirmed by Mr. Frazer in his evidence).
THE PLEADINGS
During the course of the trial, three issues arose on the pleadings for determination. These concerned the reliefs claimed by the Plaintiff; the Plaintiff’s entitlement to claim exemplary damages; and the Defendant’s entitlement to raise as a defence, qualified privilege in the form of ‘reply to attack’.
1. THE CLAIM FOR DAMAGES FOR LIBEL
On the first issue, the reliefs claimed by the Plaintiff, the Defendant argued that the Plaintiff was only entitled to claim damages for slander, notwithstanding the endorsement on the writ of summons. This because in the prayer for relief in the Statement of Claim, there was no claim for ‘damages for libel.’ Senior Counsel for the Defendant argued that he had conducted his case on the basis that the Plaintiff’s claim was for slander only and that he would be taken by surprise if he were called upon at the end of the trial to answer a claim for damages for libel. In support of this contention, reliance was placed on Order 15 Rule 1 RSC and the principle stated in the 1997 Supreme Court Practice, which state respectively:-
O 15 R1
A statement of claim must state specifically the relief or remedy which the plaintiff claims; but costs need not be specifically claimed.
Supreme Court Practice, 1997
18/15/1 Specifying relief or remedy claimed
The plaintiff must specify in his statement of claim, the relief or remedy which he claims, the practice being for the prayer for the relief or remedy to come at the end of the statement of facts and to start “The plaintiff claims . . . ,” and then to set out separately and distinctly in numbered paragraphs the items of relief or remedy which are claimed.
18/15/10 Changes to claim indorsed on writ
If in his statement of claim, the plaintiff drops all mention of any cause of action mentioned or any relief claimed on the writ, he will be deemed to have elected to abandon it [ Cargill v Bower (1878) 10 Ch.D. 502 and Lewis v Durnford (1907) 24 TLR 64, cited].
In this case, the Plaintiff’s claim for libel against the Defendant, arises in the context of the Defendant’s alleged authorization of the publication of his alleged slander in four (4) articles, appearing in the Express Newspaper (1.6.1997), the Guardian Newspaper (3.6.1997), the Newsday Newspaper (2.6.1997) and the Independent Newspaper (2.6.1997), and on the TTT Panorama broadcast of the 30.5.1997.
It is clear that the material facts in support of this cause of action for libel, were expressly mentioned and pleaded in the body of the statement of claim before it was amended [see : Bullen and Leake, Precedents of Pleadings , 12 th ed, pp. 53-54, on the meaning of ‘cause of action’; paragraphs 10, 11 and 12 of the statement of claim; and the forms in Gatley on Libel and Slander – 8 th ed, form 1621, pp. 666-667 ‘Slander and libel – Delivery of a Defamatory Speech – Authorizing Publication of the Speech in a Newsaper’; -9 th ed, form A 1.13, pp. 926 – 927]. It is therefore apparent that the Plaintiff never abandoned the cause of action for libel against the Defendant.
The question, however, is whether the Plaintiff abandoned his claim for relief for damages for libel. In this regard one must look at the prayer for relief at the end of the statement of facts.
First and foremost, this question is one of construction. That is, what does the prayer, “Damages, including aggravated and exemplary damages for slander,” mean? This prayer must be read in the context of the statement of facts preceding it. As I have pointed out, the pleaded facts expressly raise a cause of action for libel. Interestingly, in the prayer in the precedent cited above from the 8 th ed, of Gatley , which is apposite to the circumstances of this case, all that is pleaded is “Damages”. In effect, there is no need, if the causes of action in slander and libel are pleaded in the body of the statement of claim, to do anything more than claim ‘damages’ in the prayer for relief. Such a prayer would include damages for libel, as well as for slander.
In my opinion, the plain meaning of the claim in the Plaintiff’s prayer for relief in this case, is that the Plaintiff is claiming damages for both (all) causes of action pleaded in the statement of facts, but is claiming in particular aggravated and exemplary damages for slander. In my view, the comma following the word damages allows for no other construction (see the forms in Gatley’s 9 th ed). I hold therefore, that the Plaintiff is properly entitled on the pleadings to claim damages for libel, as well as for slander, against the Defendant.
Before moving off from this issue, I think it is important to address the submission of Senior Counsel for the Defendant, that to allow the Plaintiff to pursue a claim for damages for libel would take the Defendant by surprise. This submission was only pursued in the closing addresses of the Defendant. In my opinion this was desperate advocacy on behalf of the Defendant. Not only for the reason above, but for the following.
The Plaintiff’s claims as on the writ of summons, show clearly that he was pursuing claims in both slander and libel against the Defendant. The writ was filed in June 1997. The original statement of claim that was delivered had no prayer for relief , but, as stated above, clearly pleaded all the material facts in support of claims in both slander and libel. The original statement of claim was delivered in July, 1998. Significantly, in November, 1998, a defence was delivered which answered both claims in slander and libel (see paragraphs 3, 5 and 12 of the Defence). It was only in July, 1999, that the statement of claim was amended, to introduce for the first time the prayer for relief, which also included the claim for an injunction to prevent the Defendant publishing, or causing to be published, the alleged or any similar defamatory words. It is therefore extremely difficult to understand how the Defendant could say he would be taken by surprise.
Further, in the cross-examination of the Plaintiff he was questioned as follows:-
Question: You have sued for slander and libel.
Answer: Yes.
Question: You have claimed damages for libel re articles in Express, Newsday, Guardian, Independent and on TTT.
Answer: Yes.
Question: You have not taken any action against newspaper or TV.
Answer: No.
It was subsequently ‘put’ to the Plaintiff that:-
The reason for not suing the newspapers, but actually suing the Defendant alone (for damages for libel) was prompted by political considerations.
An objection was taken to this being put to the Plaintiff as part of the Defendant’s case. And, in developing his argument to justify the Defendant’s entitlement to put this suggestion to the Plaintiff, Senior Counsel for the Defendant stated that, “it is the Plaintiff’s plea that the Defendant authorized publications and is liable for the publications,” which he submitted further was a matter for the Court to decide.
I am therefore at a complete loss to understand how the Defendant can say that on the case as pleaded and conducted, he had no reason to expect that the Plaintiff would be making a claim in libel against him.
2. EXEMPLARY DAMAGES
The second issue on the pleadings deals with the Plaintiff’s entitlement to claim exemplary damages. Order 18 rule 8(3) RSC provides that: “A claim for exemplary damages must be specifically pleaded together with the facts on which the party pleading relies.” In the 1997 Supreme Court Practice, the point is made that the effect of this rule is that “the claim for exemplary damages be specifically pleaded in the body of the statement of claim (or counterclaim), not merely in the prayer” and that “the facts on which the party relies to support his claim for exemplary damages be pleaded with proper particularity” (18/8/7). An example of the way to plead exemplary damages is to be found in Forde v Shah (1990) 1TTLR 73 at 79 C – F. The necessity for particularizing the claim is to enable the other party to know exactly what case has to be met, this especially since Rookes v Barnard [1964] UKHL 1; (1964) A.C. 1129, which specifies the three categories of cases in which exemplary damages may be awarded. [See also, Atkin’s Court Forms , 2 nd ed. Vol. 32, 1992 Issue, p. 73, Fm. 3].
In this case, Counsel for the Plaintiff submitted that he was relying on the first category identified by Lord Devlin in Rookes v Barnard , namely, ‘oppressive, arbitrary or unconstitutional action by servants of the government.’ Yet, but for a claim for ‘exemplary damage for slander’ in the prayer for relief at the end of the amended statement of claim, there is no plea in the body of the statement of claim or any particulars to support such a claim for exemplary damages.
I do not agree that the matters of malice raised in paragraphs 4 and 5 of the amended reply are sufficient to allow a claim for exemplary damages to be advanced. In the system of pleadings that now exists, though these matters of malice may have gone to the question of exemplary damages if it was properly pleaded, it is clear that they were pleaded in compliance with the requirements of Order 79 rule 3(3), given the defences raised on the pleadings. I am therefore of the opinion that the Plaintiff is not entitled to pursue a claim for exemplary damages in this case. To hold otherwise would not only allow a clear breach of the rules to prevail (and in the absence of any application for an amendment), but more fundamentally, would put the Defendant at an unfair disadvantage, he not having been given proper and adequate notice of the case he would have to meet on this issue.
3. QUALIFIED PRIVILEGE, ‘REPLY TO ATTACK’
The third issue on the pleadings deals with the Defendant’s entitlement to raise as a defence in this case, qualified privilege in the form of reply to an attack. Some background is necessary to understand the context in which this issue arose.
At the commencement of the case, Senior Counsel for the Defendant declined to agree or outline the nature of his defence. A request for clarification had arisen in the context of paragraphs 4, 11 and 12 of the Defence, which state:-
4. The Defendant says that the differences between himself and the Plaintiff are political and not personal and that they occupy opposite ends of the political spectrum. The media agencies with which the Plaintiff is associated have from time to time attempted to undermine the Defendant’s government by adverse criticism as they are entitled to do by reason of their right to freedom of speech and the Defendant in turn has exercised his right to criticize the political stand taken against his government by the Plaintiff and/or the media bodies and/or organisations with which the Plaintiff is concerned and to publish political matter including political opinions in support of his own political position and that of his government. The said government is made up of members of the United National Congress of which the Defendant is Leader one member of the National Alliance for Reconstruction and two former PNM members of Parliament.
11. The Plaintiff is by reason of his position in the media a public figure whose intent is to influence public opinion including opinion on all aspects of public affairs and is not entitled to complain of political criticism which can do and does him no personal harm or injury. Further the Defendant says that the Plaintiff has suffered no harm or injury by reason of the address complained of and in the premises the Defendant will contend that the Plaintiff is not entitled to the reliefs claimed or any relief whatsoever.
12. The Defendant will rely expressly upon his right to freedom of speech which is guaranteed by section 4 of the Constitution in defence of the claim herein and to the making of any order for the relief upon the claim.
However, Senior Counsel for the Defendant undertook to inform Counsel for the Plaintiff and the Court at “the appropriate time” of the specific ambit of the Defendant’s defence. At the close of the evidence on the 13 th July, 2000, I raised this matter again and was informed by Senior Counsel for the Defendant that he would inform Counsel for the Plaintiff of the exact nature of his defence before addresses began on the date agreed (18 th July, 2000).
On the 18 th July, 2000, Counsel for the Plaintiff informed me that he had settled his written submissions on the basis of what Junior Counsel for the Defendant had told him were the defences being pursued by the Defendant. In particular, he informed me that the Defendant was not pursuing the defence of fair comment in the public interest (paragraph 8 of the Defence) and was also not pursuing the “ Reynolds v Times Newspapers Ltd ” [(1999) 4 AER 609] defence”. In the circumstances Counsel for the Plaintiff had formulated ‘agreed’ issues as follows:-
i. Whether the words spoken by the Defendant were spoken of and concerning the Plaintiff, ii. Whether the words spoken by the Defendant were defamatory of the Plaintiff, iii. Whether the words spoken by the Defendant were spoken of the Plaintiff in the way of his profession as a businessman and/or Chief Executive Officer of CCN and as a Chairman and Director of several companies, iv. Whether the Defendant is responsible for the republication of the slander by the media in the articles and in the television broadcast specified at paragraph 11 of the Amended Statement of Claim, v. The basis upon which damages are to be assessed.
It seems however, that in Court on the morning of the 18 th July, 2000, Counsel for the Plaintiff was informed that the Defendant also intended to pursue the defence of ‘qualified privilege, reply to an attack.’ Senior Counsel for the Defendant informed the Court that this was indeed so, and for the first time in this case, identified/clarified as a defence being pursued, qualified privilege, reply to an attack. He then pointed the Court to Gatley on Libel and Slander , 8 th ed, page 218, paragraph 514, which reads as follows:-
Reply to attack . Again, a person whose character or conduct has been attacked is entitled to answer such attack, and any defamatory statements he may make about the person who attacked him will be privileged, provided they are published bona fide and are fairly relevant to the accusations made. The law justifies a man in repelling a libellous charge by a denial or an explanation. He has a qualified privilege to answer the charge; and if he does so in good faith, and what he publishes is fairly an answer, and is published for the purpose of repelling the charge, and not with malice, it is privileged, though it be false.”
This, he submitted, summarized this defence that the Defendant intended to pursue in this case.
Counsel for the Plaintiff objected to any such defence being allowed and submitted that the Defendant was not permitted on the pleadings to pursue such a defence. He asked that I determine this point at that stage. The evidence having been completed (with none called for the Defence), I ruled that I would hear the addresses and then decide the issue.
In my opinion, on the pleadings as they stand, the Defendant is not entitled to raise as a defence, qualified privilege in the form of reply to attack. To raise such a defence, the material facts relied upon must be set out in the defence in a manner to give the Plaintiff notice of the case he has to meet. In Gatley on Libel and Slander , 8 th ed, form 1648, page 682, “ Qualified Privilege – Statements made in answer to an Attack on Character ”, the typical form of such a plea is set out. Material to that plea is the identification of the attack with sufficient particularity and the justification that it was in the interest of the Defendant to respond to the allegations in the manner adopted.
In his submission, Senior Counsel for the Defendant argued that paragraphs 4, 7 and 11 of the Defence were a sufficient basis in law to raise this defence. However, he agreed that the Defence did not plead with any particularity, a specific attack, or a reply to an attack. He submitted however, that the plea at paragraph 4, which states: “The media agencies with which the Plaintiff is associated have from time to time attempted to undermine the Defendant’s government by adverse criticism . . . ,” was sufficient to constitute a plea of an attack. And, was sufficient to allow the Defendant to argue that the Plaintiff’s speech on the 7 th May, 1997 criticizing the Green Paper amounted to an attack. Further, that the Defendant’s plea that he had a “right to criticize the political stand taken against his government by the Plaintiff”, was also sufficient to allow the Defendant to argue that the Defendant’s address on the 30 th May, 1997 was a reply to the Plaintiff’s said attack.
Order 18 rule 7 provides that all material facts on which a party relies must be pleaded. And, order 18 rule 8 sets out these matters which must be specifically pleaded. This latter category includes matters, “which he alleges makes any claim . . . of the opposite party not maintainable” or “which if not specifically pleaded, might take the opposite party by surprise” or “which raises issues of fact not arising out of the preceding pleading” [O18 r8 (i) (a) (b) (c)].
In this context, the 1997 Supreme Court Practice points out under the category ‘Defamation’: ‘A defendant must plead justification or privilege specifically’ and further that: ‘The facts and circumstances on which the defendant will rely as rendering the occasion privileged should be set out,’ see – Elkington v London Association for Protection of Trade (1911) 27 T.C.R. 329 and 18/8/6 – Supreme Court Practice.
In my opinion it is essential not only that the Defendant must plead privilege specifically, but must go further and plead the material facts and circumstances necessary to create and prove the privilege. (See – Gatley on Libel and Slander , 8 th ed, para 1127). In Gatley , supra, it is there stated at para 1129:-
Defence must be specially pleaded
A defence of qualified privilege must always be specially pleaded. In the absence of such a plea the defendant cannot adduce any evidence at the trial to establish such a defence, nor cross-examine the plaintiff’s witnesses with a view to a submission that the occasion was privileged.
Further, in the precedents in Gatley supra, every form for a plea of qualified privilege begins with: “The said words were published (spoken) on an occasion of qualified privilege”(or the like), and continue on to particularize the material facts and circumstances. [see forms 1644 to 1650 and in particular form 1648, “ Qualified Privilege – Statements made in answer to an Attack on Character ”, at pp. 681 to 683 and see also, as an example of the form of the plea, Nevin v Roddy (1934) IR 337 at p.400].
In my opinion, there is nothing in the Defence that comes close to the pleading requirements to entitle this Defendant to raise this defence of qualified privilege, reply to attack. Paragraphs 4, 7 and 11 of the Defence were clearly intended to plead a totally different defence, one which is obviously no longer being pursued by this Defendant. It is equally clear to this Court, that that decision having been taken, there is now an attempt to twist the pleadings to fit a plea of qualified privilege, reply to attack. In my opinion no contortion can help.
THE ISSUES
1. WERE THE WORDS SPOKEN OF AND CONCERNING THE PLAINTIFF
The first issue to be determined, is whether the words spoken by the Defendant in his address of the 30 th May , 1997, were spoken of and concerning the Plaintiff.
Senior Counsel for the Defendant contends that “the main plank of the defence is that the words were not spoken of the Plaintiff”. In his submission, he asked me to consider the entire speech of the Plaintiff and in viewing the video recording, to pay attention to “the tone adopted by the Defendant, his mannerisms, intonations and pauses”. And, “in the general atmosphere in which the speech was delivered, to decide whether a reasonable listener would have understood the speech in the way in which the Plaintiff says it would be understood.”
In support of the above, Senior Counsel for the Defendant cited Gatley on Libel and Slander , 8 th ed, para. 120 p. 65, which states:-
Reasonableness . “The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.” In determining whether the words are capable of a defamatory meaning the judge will construe the words according to the fair and natural meaning which would be given them by reasonable persons of ordinary intelligence, and will not consider what persons setting themselves to work to deduce some unusual meaning might succeed in extracting from them. That clearly is not the test. “The test according to the authorities,” said Lord Selborne “is whether, under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand it in a libellous sense.
The Plaintiff has contended, as pleaded at paragraph 13 of his statement of claim, that:-
The said words in their natural and ordinary and/or inferential meaning meant and were understood to mean:
a. That the Plaintiff was a racist and/or practiced racism;
b. That he practiced racism and/or fomented and/or encouraged racial discord and/or division in the society for his own political and/or commercial advantage or profit.
c. That he was representative of persons who: practiced racism and/or fomented and/or encouraged racial discord and/or division in the society, who did so cynically to maintain positions of privilege or commercial or political advantage and who were prepared to do so to the detriment of the national good by opposing measures calculated to control crime and criminals (including drug lords) or to eradicate corruption and/or maladministration in the URP and/or in state enterprises
The ‘said words’ refer specifically to that part of the Prime Minister’s address shown in italics supra, but it was agreed that the address of the Defendant must be considered as a whole.
In the opinion of Senior Counsel for the Defendant, if one accepts that the Prime Minister approved the Plaintiff’s chairmanship of BWIA and appointed the Plaintiff as chairman of the Prime Minister’s National Beautification Programme, then it cannot be suggested that the Prime Minister thought that the Plaintiff was a pseudo racist and was trying to divide the society to obtain commercial advantage. He submitted, that even bearing in mind the Plaintiff’s attack on the UNC Government over the Green Paper, “it would be impossible to think that because the Plaintiff took that stand he would be branded by the Prime Minister as a pseudo racist”.
In his submission, the Prime Minister was speaking at a ceremonial occasion to mark Indian Arrival Day, and was making a political speech. That, in that address, the Prime Minister had spoken first of his Government of national unity, then of the obstacles to national unity; of the different groups within the society pulling in different directions and for the need for all groups to pull in the same direction. And, in that context, the Prime Minister had spoken of a particular group which he labeled ‘pseudo-racists’.
In his submission, when one examines carefully the impugned words, one will see that the Prime Minister’s reference to the “ many people who do not want National Unity” (para 2, line 5), refered to politicians . That is, the Prime Minister was really criticizing the politicians who seek to divide and rule and who were against the UNC Government of national unity. In his submission, the references to ‘they’ and ‘these’ that followed, all refer to ‘politicians’.
Further, Senior Counsel for the Defendant submitted that, ‘politicians’ did not include the Plaintiff. And that the reference to the Plaintiff, juxtaposed as it was between admitted references to pseudo racists, is of no significance, since “this reference to Ken Gordon is with respect to his attack on the Green Paper”. Thus he submitted, that the fair and natural meaning to be given to the words by reasonable persons of ordinary intelligence hearing the Prime Minister’s address, in the entire context in which it was delivered, including the Green Paper controversy, would not have led to the understanding that the Prime Minister was calling the Plaintiff a pseudo racist, or one among those who resisted national unity, or one among those who condemned the UNC Government when it passed laws to deal with criminals, signed an agreement with the Americans to deal with drug lords, tried to change the URP, or sought to eradicate corruption in State Enterprises.
In my opinion, this argument of the Defendant is unsustainable. The interpretation advanced by the Defendant depends exactly on what Senior Counsel for the Defendant urged the Court not to do, that is, interpret the Prime Minister’s address “like a lawyer, straining the language of the words.”
To quote Lord Ackner in Gordon v Chokolingo , Privy Council Appeal No. 19 of 1986, in which the Court of Appeal’s approach to the analysis of an alleged libelous article in a newspaper was criticized:-
While rightly concluding that the court should look at the whole of the article in order to determine the natural and ordinary meanings of the words complained of, the learned justice of appeal then said that “the court should enter upon a full analysis of the article as well”. He then proceeded to enter into a detailed analysis, paragraph by paragraph of the article, and in so doing he treated the article as though it would and should be read and construed in severable parts. He thereby arrived at the conclusion that, although the first eleven paragraphs of the article, read in isolation from the rest, appeared to level charges of hypocrisy and at least intellectual dishonesty against Dr. Gairy, it was inconceivable that any reasonable reader of the article would have concluded that the later paragraphs (including the paragraph which specifically referred to the appellant) were levelling the same or similar charges at anyone else who was said to have attended Dr. Gairy’s meeting.
In adopting this approach, the learned justice of appeal omitted from his quotation from the speech of Lord Reid in Lewis v Daily Telegraph Limited [1964] A.C. 235 at 258 the following important statement:-
“There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction.”
Moreover in the subsequent case of Morgan v Odhams Press Limited [1971] 1 W.L.R. 1239 at 1245 Lord Reid said:-
“If we are to follow Lewis’ case [1964] A.C. 234 and take the ordinary man as our guide then we must accept a certain amount of loose thinking. The ordinary reader does not formulate reasons in his own mind; he gets a general impression and one can expect him to look again before coming to a conclusion and acting on it. But formulated reasons are very often an afterthought.
The publishers of newspapers must know the habits of mind of their readers and I see no injustice in holding them liable if readers, behaving as they normally do, honestly reach conclusions which they might be expected to reach.”
In the same case Lord Pearson in his speech at page 1269 said:-
“ . . . I do not think the reasonable man - who can also be described as an ordinary sensible man – should be envisaged as reading this article carefully. Regard should be had to the character of the article; it is vague, sensational and allusive; it is evidently designed for entertainment rather than instruction or accurate information. The ordinary, sensible man, if he read the article at all, would be likely to skim through it casually and not to give it concentrated attention or a second reading. It is no part of his work to read this article, nor does he have to base any practical decision on what he reads there. The relevant impression is that which would be conveyed to an ordinary sensible man . . . reading the article casually and not expecting a high degree of accuracy.”
In their Lordships’ opinion, whether the article complained of is read as a whole in the manner of the ordinary reader of a popular newspaper, or even construed in the manner adopted by Braithwaite J. A., it plainly accused those Trinidadians who were present, and in particular the appellant who was singled out for special mention by name, as being a hypocrite and intellectually dishonest, words which were plainly defamatory of him.
In my opinion, these comments though made in relation to a written article, are no less applicable in principle to an oral address. [See also the opinion of Hamel-Smith J., in Forde v Shah , (1990) TTLR 73 at 82 A to 83 B].
It is my view that the ordinary person, man or woman, hearing this address of the Prime Minister, would have identified national unity as the theme of the Prime Minister’s address, and would have been led by the Prime Minister along the following train of thought: First, that the Prime Minister’s UNC Government stood for national unity; indeed, that national unity was the sine qua non of that government: “my Government of National Unity”. Then, that in the plural society that is Trinidad and Tobago, the people desired “to feel wanted, to feel that they belong.” To the identification of the cause for that longing. And, that lack of national unity was ‘the single most debilitating factor’ existing in Trinidad and Tobago. Leading to an assertion that national unity was “the most critical issue facing our nation and our society at this point in time.” And, that Trinidad and Tobago “is a most divided society”, divided because “ we have divided them”.
The question that arises, is whether the ordinary listener would have interpreted this “we” in “we have divided them” to refer to politicians? I think not, and this because the sentence that preceded this statement identified those who have been pulling against one another resulting in the society being divided. Though several groups were identified in economic, occupational, ethnic, religious and geographic terms, the group ‘politicians’ was not mentioned. That is to say, there is nothing to suggest that the Prime Minister was referring to politicians when he said “ we have divided them;” on the contrary, the listeners’ minds were directed to specific groups who have ‘divided the society’ and ‘politicians’ were not named as being amongst them. In fact, ‘businessmen’ is the first group identified.
What then followed in the address is a plea by the Prime Minister that, “unless we can unite . . . we shall lose the opportunity . . . to create the paradise that this country was meant to be.” And, an invitation, inviting the listeners to join the Prime Minister “in this crusade of National Unity . . . ,” accompanied by a warning, that “in this crusade . . . you will meet many people who do not want National Unity.”
For the listener, the Prime Minister was at this point leading them along a path where the focus shifts. The question that would have begun to arise in the listener’s mind, was “who are these people who are against this much desired and needed national unity?” The focus having been shifted, the Prime Minister continued, “they are the ones who in the past have benefitted and thrived on maintaining division of society.” The Prime Minister did not at this point provide any particulars, only a statement which begs the very question arising in the mind of the listener, and serves to pique his or her interest and natural curiosity more: “who are these persons?” The Prime Minister continued, “I call them pseudo-racists.” Now, for the first time, there is something more concrete, more specific, though still conceptual. The opponents to the crusade for national unity were the ‘pseudo racists.’ But the very term ‘pseudo racist’ creates mystery that would both hold the listener’s attention, and focus it further. Two questions would then naturally arise in the mind of the ordinary listener, “What is a pseudo-racist?” and, “Who is a pseudo-racist?” The Prime Minister continued:-
And I call them Pseudo Racists because they are not real racists. Real racists are people who look after their race. These fellas use race only to look after they self. They are pseudo racists. So I say the pseudo racists who have divided the society to maintain political power and even now are doing so in the hope of political survival. The Ken Gordons who want to maintain his monopolistic advantage over his competitors in the media.
In this statement, the Prime Minister answered both of the questions that would arise in the ordinary listener’s mind. In my opinion, the path that the listener was deliberately and very carefully led along, ended with a definition of the dividers of the society and with the identification of a person, singled out for special mention by name, representative of that group. I have no doubt in my own mind, having seen the video of the Prime Minister’s address, having read the transcript of same and having weighed the competing analyses suggested, that the ordinary listener would have concluded that the Prime Minister was calling the Plaintiff a pseudo racist, who used racism to maintain division in the society and to maintain a commercial or economic advantage over his competitors in the media business.
I am fortified in my opinion, though not influenced, by the unchallenged evidence of Mr. Richard Lord, the contemporaneous publications in all the major daily newspapers in Trinidad and Tobago, and the statement of the Plaintiff’s contemporary in the early morning following the Prime Minister’s address, that the interpretation of the ordinary person in Trinidad and Tobago on hearing the Prime Minister’s address, was that the Prime Minister had called the Plaintiff a pseudo racist. There is no doubt that the Plaintiff himself felt this way, as the writ in this action was filed on the 6 th June, 1997, within days of the Prime Minister’s address.
In my opinion, whether or not politicians were included amongst those who divided the society, or were pseudo racists, is really irrelevant to the issue before this court. The issue is not whether the Prime Minister was referring to politicians, or intended to do so. The issue is whether the ordinary, reasonable and intelligent listener would have understood the Prime Minister to have been referring to the Plaintiff.
Thus far in his address, the Prime Minister had made absolutely no reference to ‘politicians’. If he intended to refer to them as the pseudo racists who divided the society, he could have said so. Instead, he chose to say, following his description of ‘pseudo-racists’, “the Ken Gordons . . . ”. And to follow this single sentence naming the Plaintiff, who stands out like an escaping convict caught in the glare of a prison spotlight, with eight (8) references to “they”. Who are the “they” who “do not want change”, who “continue to resist national unity?” In the context of the Prime Minister’s address, the inescapable conclusion for the listener, was “the Ken Gordons” . . . which class, whoever else it may have included, was typified by the man, the individual, the person Ken Gordon. What could be more pointed I find hard to envisage. Surely the ordinary listener would go away with only one name stuck in his or her mind: it is “The Ken Gordons” who “doh want change”, who “ want to continue in the old ways”. And why? Because “The Ken Gordons” are “pseudo-racists”, who like Ken Gordon in particular, are persons: “Who want to maintain his monopolistic advantage over his competitors in the media”. To quote the words of Uthwatt, J. in Hopwood v Muirson (1945) 1 AER 453 at 458 g, which I adopt:-
I do not think that the peccant phrase-finding its place between two distinctly personal references to the plaintiff - can be properly regarded merely as a generalisation relating to the worthlessness of references given by solicitors. Its point lay in its application to the plaintiff.
So also, here, I do not think that the reference to the Plaintiff, finding its place between two clear references to pseudo racists, who divide the society and resist national unity, that these two references can be regarded as generalizations not relating to the mention of the Plaintiff. In my opinion the point in referring to the Plaintiff, lay in classifying him as a pseudo racist who sought to divide the society, resist national unity and maintain power.
Finally, I find it quite remarkable that the Prime Minister would suggest that the reference to ‘pseudo-racists’ in his address was to politicians and therefore did not include the Plaintiff. This because, the very case that the Defendant sought to put to the Plaintiff in cross examination, was that the Plaintiff’s speech of the 7 th May, 1997 was a political stand taken by the Plaintiff against the Prime Minister and his UNC Government (see also paragraph 4 of Defence) and further, that the Plaintiff’s decision not to sue for libel the newspapers that published the alleged defamatory words, was prompted by political considerations. If this was what the Prime Minister really believed, as advanced on his behalf by his attorneys, then clearly the Plaintiff would have been among those in the realm of politics who were opposed to the Prime Minister’s ‘Government of National Unity’.
In my opinion this ‘main plank’ of the Defence is without any foundation whatsoever and must necessarily fall.
2. WERE THE WORDS DEFAMATORY
The second issue is whether the words spoken by the Prime Minister were defamatory of the Plaintiff. The issue is a live one, because I have resolved the first issue against the Defendant and agreed with the Plaintiff that the impugned words of the Prime Minister, in their natural and ordinary meaning, meant and would have been understood to mean:- That the Plaintiff was a racist and/or practiced racism (pseudo racism); that the Plaintiff practiced racism and/or fomented and/or encouraged racial discord and/or division in the society for his own commercial and/or political advantage or profit; and that the Plaintiff was representative of persons who practiced racism and/or fomented and/or encouraged racial discord and/or division in the society and who did so cynically to maintain positions of privilege and/or commercial and/or political advantage and who were prepared to do so to the detriment of the national good by resisting national unity.
Senior Counsel for the Prime Minister agreed at the very end of his closing speech, that to call a person a pseudo-racist is defamatory. In my opinion, the issue goes further than that. The allegation of the Prime Minister against the Plaintiff was that the Plaintiff was a pseudo racist, who used racism to perpetuate divisions in the society, in order to maintain and gain commercial and/or economic advantage for himself his media concerns (over his competitors).
Such an allegation suggested that though the Plaintiff pretended to be a racist, he was really a pseudo racist, a false racist. For many of the ordinary listeners, the distinction between a ‘racist’ and a ‘pseudo-racist’ would have been lost. What would likely be remembered was exactly what the Plaintiff was told on the morning following the Prime Minister’s address: “I hear Panday call you a big racist ”. The first imputation and maybe the most lasting one, was that the Plaintiff was a racist . . . and it is likely that the ordinary local citizen would assimilate all of the finer details of the allegations into the thought form, ‘the Plaintiff is a big racist”. In a society such as Trinidad and Tobago, that is very likely. In my opinion, the idea that the Plaintiff was a (big) racist was the likely lasting meaning of the broad impression conveyed by the words used, to the ordinary person (see Lord Devlin in Rubber Improvement Ltd v Daily Telegraph Ltd (1964) AC 234 at 285; and the quotation from Lord Ackner in Gordon v Chokolingo supra). Put another way, this was the gist of the defamation.
This being the case, I think that there is a need to examine the notion of racism. In the local context of a multi racial, multi religious, multi cultural, plural society such as Trinidad and Tobago, where there are two major ethnic/racial groups (African decendants and East Indian decendants) and several other smaller ethnic/racial groups, which coexist in a small and highly populated land space and which maintain strong religio-cultural connections with their ancestral heritages, racism is anathema. Racists are reviled and hated in this society, they are shunned and avoided. Indeed, few if any extremists in this society overtly proclaim racism as the center of their ideological, political, cultural or religious orientation.
It is worth noting that the Prime Minister’s avowed UNC Government of National Unity, in its said 1997 Green Paper on Media Reform prepared under the hand of the Attorney General, stated at section four, captioned: The Law of Libel and Race Hatred , (at 4.7):-
Racial Defamation is, however, another matter. Human Rights treaties generally make an exception to free speech when it is intended to stir up racial hatreds and violence. There is a strong case for making incitement to racial violence a specific criminal offence.
In the United Nations Declaration on the Elimination of All Forms of Racial Discrimination , it is there stated:-
Considering that any doctrine of racial differentiation or superiority is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination either in theory or in practice.
Convinced that all forms of racial discrimination and, still more so, governmental policies based on the prejudice of racial superiority or on racial hatred, besides constituting a violation of fundamental human rights, tend to jeopardize friendly relations among peoples, co-operation between nations and international peace and security,
Convinced also that racial discrimination harms not only those who are its objects but also those who practise it.
Proclaims this Declaration:
Article 1
Discrimination between human beings on the ground of race, colour or ethnic origin is an offence to human dignity and shall be condemned as a denial of the principles of the Charter of the United Nations, as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights, as an obstacle to friendly and peaceful relations among nations and as a fact capable of disturbing peace and security among peoples.
Article 9
1. All propaganda and organizations based on ideas or theories of the superiority of one race or group of persons of one colour or ethnic origin with a view to justifying or promoting racial discrimination in any form shall be severely condemned.
2. All incitement to or acts of violence, whether by individuals or organizations against any race or group of persons of another colour or ethnic origin shall be considered an offence against society and punishable under law.
3. In order to put into effect the purposes and principles of the present Declaration, all States shall take immediate and positive measures, including legislative and other measures, to prosecute and/or outlaw organizations which promote or incite to racial discrimination, or incite to or use violence for purposes of discrimination based on race, colour or ethnic origin.
And, in the International Convention on the Elimination of All Forms of Racial Discrimination , (to which Trinidad and Tobago is a signatory), it is there stated:-
Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere,
Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State,
Convinced that the existence of racial barriers is repugnant to the ideals of any human society.
In fact, the Prime Minister’s UNC Government of National Unity, in a bill entitled ‘ The Equal Opportunity (No. 2) Bill, 1998 ’ , sought, pursuant to clause 7 thereof, to “prohibit offensive behaviour in public which offends or insults another person or group, on the ground of race, origin or religion and . . . the inciting of racial or religious hatred” (quote taken from the explanatory note accompanying the Bill).
It is clear therefore, that both in the national and international context, racism and the practice of same is considered amongst the most offensive and condemnable conduct known to humanity and contrary to the collective values, spiritual, ethical and legal of all civilized people. In my opinion, it is in this context that one must properly evaluate the nature of the defamation against the Plaintiff.
However, the allegation against the Plaintiff was not simply that he was a racist. In my opinion it goes much further. He was accused of being a ‘pseudo-racist’, a false racist. That is to say, the Prime Minister labelled the Plaintiff a hypocrite who lacked even the integrity to be a genuine racist (who the Prime Minister appeared to sympathize with, because at least they had the integrity of being ‘real racists . . . who look after their own race’). Thus, the Prime Minister accused the Plaintiff of being even more despicable and condemnable than real racists, because the Plaintiff, under the guise of racism, exploited racism for his own selfish gain.
As Lord Ackner pointed out in Gordon v Chokolingo , to call a person a hypocrite is ‘plainly defamatory of him’. In my opinion, it is beyond words to describe the nature of the defamation that labels a person, in a society such as Trinidad and Tobago, a ‘pseudo -racist’, a person worse than a racist. For if racists are hated most often by those racially different from themselves (and that is not the case with any right thinking person) the exposed pseudo racist will incur the hatred of all people. Even their own racist colleagues will now revile them, because they have been shown to be exploiting their own for personal gain.
In my opinion, the words spoken by the Prime Minister of the Plaintiff were without doubt defamatory of the Plaintiff and so in the worst possible way in a society such as Trinidad and Tobago. They have already and no doubt will continue to lower the Plaintiff in the estimation of right thinking members of this society, expose him to hatred, contempt and ridicule, and cause persons to avoid him and view him with suspicion.
There are few practices that are more malevolent and destructive than racism, whether practiced for true or false reasons. To wrongfully accuse a person of racism is no different. To adopt the words of Swami Aksharananda, spoken at the recently concluded World Hindu Conference held in Trinidad and Tobago (August, 2000): “This language which devalues the individual is an act of violence . . . (it) divides people and produces a theology of hate and violence;” so also with the allegations made by the Prime Minister of the Plaintiff. This slander by the Prime Minister of the Plaintiff and of all ‘the Ken Gordons’ in this land, constitutes nothing less than a threat to the peaceful fabric of the society. For as Mahatma Mohandas Gandhi has stated: ‘The way of peace is the way of truth. Indeed, lying is the mother of violence.’ Particularly where the untruth is a charge of racism in a society such as is Trinidad and Tobago.
3. WERE THE WORDS SPOKEN CONCERNING OR IN THE WAY OF THE PLAINTIFF’S CALLING
The third issue is whether the words spoken by the Defendant, were spoken concerning, or in the way of, the Plaintiff’s calling. This issue is one of fundamental importance in so far as the cause of action for slander is concerned. This because a slander is not actionable per se in the absence of special damage, except inter alia , in the above situation (see Gatley , 8 th ed, para 143, p. 73). In this case there has been no claim for special damages.
In Trinidad and Tobago there is no statute akin to the 1952 Defamation Act, UK. The Common Law governs. Gatley summarizes the position thus: “Under the law before the Defamation Act, 1952, in default of proof of special damage, it was necessary to allege and prove that the words complained of were spoken in reference to the character or conduct of the Plaintiff in his office, profession or trade” (p. 85, fn. 28). Thus, at Common Law, “words which merely imputed to the Plaintiff some misconduct unconnected with his office, profession or trade were not actionable without proof of special damage” ( Gatley , p. 85, fn. 29).
This issue engendered much argument and disagreement between the attorneys for the Plaintiff and the Defendant as to the appropriate test to be applied. Senior Counsel for the Defendant submitted that: “The Common Law position that governs us is that words must be published of and concerning the Plaintiff of and in the way of his office or profession.” And further that: “ ‘In the way of his office’ means, the defamatory words must be to the effect that the Plaintiff is ineligible for holding the office or profession.” Counsel for the Plaintiff disagreed with this statement of the law and submitted that the appropriate test was simply whether there is “an allegation of impropriety in the practice of the profession.” Both sides relied heavily on the decisions of the House of Lords in Jones v Jones [1916] UKHL 2; (1916) 2 AC 481 and of the English Court of Appeal in Hopwood v Muirson 1945 1 AER 453, in support of their respective contentions.
In my opinion, the formulation of the test by Senior Counsel for the Defendant is not a correct statement of the law and is not supported by the decisions in Jones or Hopwood
In Jones , Viscount Haldone stated the test as follows:-
Subject to the carefully-guarded exceptions to which I have referred the rule is that laid down in Comyns’ Digest, “Action upon the Case for Defamation” (D.27): “But words not actionable in themselves, are not actionable, when spoken of one in an office profession or trade, unless they touch him in his office, &c.” In Doyley v. Roberts Tindal C.J. applied the law as laid down in this passage by refusing relief to an attorney of whom it was falsely said that he had defrauded his creditors and been horsewhipped off the course at Doncaster. That this is the basic principle which limits the cases in which the common law permits general damages to be awarded was laid down in striking language in the judgment of the Court of King’s Bench in Ayre v. Craven , delivered by Lord Denman C.J. “Some of the cases,” he said, “have proceeded to a length which can hardly fail to excite surprise; a clergyman having failed to obtain redress for the imputation of adultery; and a schoolmistress having been declared incompetent to maintain an action for a charge of prostitution. Such words were undeniably calculated to injure the success of the plaintiffs in their several professions; but not being applicable to their conduct therein , no action lay.” There a physician had been accused of adultery, but the words did not in terms connect the imputation with anything done by him when acting in a professional capacity . This decision was followed in James v. Brook , when it was said that “even if the words have a natural tendency to produce injury in the profession, the declaration is wholly wanting in any explanation of the way in which the speaker connected the conduct with the profession .”
Lord Summer expressed the test in these terms:-
I agree with the passage in the judgment of the Court of Appeal: “In our opinion, words imputing adultery, profligacy, immoral conduct, or the like, whether referring to behaviour on a particular occasion or to conduct in general, even when spoken of a man holding an office or carrying on a profession or business, are not actionable without special damage unless they relate to his conduct in the office, profession, or business, or the imputation is connected with his professional duties.”
My Lords, this part of the law of slander has sometimes come in for pretty sharp criticism, particularly from the judges who have applied it. The Court of Appeal in the present case says “the law of slander is an artificial law . . . . It is not like a law founded on settled principles, where the Court applies established principles to new cases, as they arise.” I think this does the common law on the subject less than justice. The law of defamation is founded on settled principles. Defamation, spoken or written, is always actionable if damage is proved, and, even if it is not, the law will infer the damage needed to found the action (1.) when the words are written or printed; (2.) when the words spoken impute a crime punishable with imprisonment; (3.) when they impute certain diseases naturally excluding the patient from social intercourse; (4.) when words are spoken of a person following a calling, and spoken of him in that calling, which impute to him unfitness for or misconduct in that calling. The classification is one of words, not of persons, but it is a classification only. There is no reason why all four classes of words should be held to import legal damage for the same or for some analogous reason. I think these rules are as well established, as worthy of being called principles, and as capable of being applied to new cases when they arise, as are most rules or principles of law or equity. Perhaps they are neither ideally just nor ideally logical, but principles are like that. For myself I am quite content to take the law as I find it.
For Lord Parmoor’s:-
The principle that damage of some kind is essential to maintain an ordinary action of slander is not open to question. There are, however, certain cases in which the law assumes the probability of damage without requiring proof. It is not necessary that the damage should be pecuniary. This is illustrated in an action for words imputing that the plaintiff is suffering from certain forms of contagious disease, which tend to ostracize him from society. In this case the law will assume damage without requiring proof, as also in cases in which a criminal offence is imputed to the plaintiff, or in which the words spoken impute to the plaintiff misconduct , or want of skill or capacity, in the duties or requirements of his office, profession, or trade.
As the law of slander stands, words imputing moral misconduct to a plaintiff who holds an office such that the imputation cannot fail to be injurious to him are not actionable without proof of special damage unless they relate to his conduct in the office, or import an imputation connected with his official duties.
And, in Lord Wrenbury’s opinion:-
By contrast with these cases is the case of the attorney or solicitor. In that case it would seem that there must be colloquium : the words must be spoken of the plaintiff in the matter of his profession. If not, his action will fail: Doyley v. Roberts ; Dauncey v. Holloway . In that case the words are not actionable unless they impute either impropriety or misconduct in relation to or in connection with the profession or want of capacity to carry on the profession.
If the office be one of trust, an imputation of dishonesty in the calling touches the plaintiff in his calling and is actionable: Seaman v. Bigg. If the office be an office of honour but not of profit, imputation of “misconduct in the office is actionable”; but a gross imputation such as that the plaintiff is an habitual drunkard and unfit for the office is not: Alexander v. Jenkins. Lord Herschell’s judgment in that case is most instructive, and leaves the reader convinced that to look for a principle in the law of slander is an idle quest. Legislation is the only remedy which can establish a principle or lay down a satisfactory code. Lord Herschell summarizes this part of the law by saying that in the case of the office profit “It must be either something said of him in his office or business which may damage him in that office or business, or it must relate to some quality which would show that he is a man who, by reason of his want of ability or honesty, is unfit to hold the office”; and that in the case of the office not of profit the mere imputation of want of capacity or ability is not enough; but there must be an imputation that the man ought to be deprived of his office, and which therefore involves a risk of exclusion from the office.
In Hopwood , Lord Goddard stated the relevant question to be posed in order to resolve this issue, as follows:-
The question is, does that reasonably convey any imputation of impropriety or misconduct in relation to or in connection with the plaintiff’s profession as a solicitor or unfitness to carry on his profession in a proper and satisfactory manner.
And, in his opinion:-
It is not enough that the words are spoken of a plaintiff in his calling; they must also impute to him unfitness for , or misconduct in , that calling.
Uthwatt J. in agreeing with Lord Goddard, framed the relevant test this way:-
The question is whether these words rationally understood convey an imputation upon the plaintiff in his profession as a solicitor.
And, (Uthwatt J.) made the distinction between a slander that was upon a professional as a person and one that was upon a person as a professional. In the latter case, he thought that such a slander was actionable per se (see at page 459 A). [For a regional decision on the point, see Haynes v Johnson (1978) 31 WIR 95 at 96 f-j].
Senior Counsel for the Defendant submitted that the defamatory words were not spoken of the Plaintiff in the way of the Plaintiff’s profession or calling; that they did not touch or concern the Plaintiff in the way of his office; and that they made no allegation of misconduct on the part of the Plaintiff in the performance of his profession or calling. To quote Senior Counsel for the Defendant: “It cannot be suggested that this expression if true would disqualify the Plaintiff as being incompetent or not possessing some skill to perform his duty as CEO of CCN.”
De Stempel v Dunkels (1938) 1 AER 238, was a case in which the alleged slander was the statement that a certain person was a “Jew hater”. In Scott L J’s opinion: “The words seem to me obviously defamatory. To say that a man hates a particular race or class of people is to allege, at the very least, a character which is warped and unlikely to be impartial” (at page 255 B). However the issue in that case was whether these words were stated concerning or in the way of the Plaintiff’s calling. In this regard Scott L.J. stated (at p. 259):-
In order that the plaintiff may have judgment, the essential condition laid down in Jones v Jones must be satisfied: where no special damage is proved, the words must have been uttered in relation to the plaintiff’s occupation. I do not think, however, that that relation need be expressed. In my view, it is sufficient to satisfy the condition if it is shown that that meaning was, in the circumstances of the case, plainly conveyed by the words spoken.
In my opinion, there can be no doubt that the defamatory words spoken by the Prime Minister were uttered in relation to and in connection with the Plaintiff’s calling or occupation in the media business. To allege that the Plaintiff used (“misused’) racism to maintain a monopolistic advantage over competitors in the media business, is to convey an imputation of misconduct and impropriety on the Plaintiff in his calling in the media business. In my opinion, the slander would also render the Plaintiff, in the eyes of all right thinking individuals, unfit to carry on his calling in the media business in a proper and satisfactory manner. In effect, the slander implied that the Plaintiff was using racism to maintain a monopoly and by necessary implication to drive competitors out of business. I believe there can be no question of a lack of any colloquium between the words spoken of the Plaintiff and the matter of his profession. Significantly, the Prime Minister shifted in his address from the plural pronoun to the singular pronoun ‘his’ and so expressly made the connection between the Plaintiff and his conduct in his calling, when he said:-
The Ken Gordons who want to maintain his monopolistic advantage over his competitors in the media.
In my opinion, this was a direct and unequivocal reference to the Plaintiff in the conduct of his calling in the media business. For these reasons, I hold that the impugned words were spoken by the Prime Minister concerning and in the way of the Plaintiff’s calling.
Further, in News Media Ownership v Finlay (1970) NZLR 1089 CA, it is there stated (at page 1095):-
In my opinion, there is no substance in this contention, for surely it is plain enough that it is harmful to the trading reputation of a newspaper company to allege that it conducts its business without regard for the public interest, its principal concern being merely with the making of profits.
So much more to say that the Plaintiff practiced racism in the conduct of his office, profession or business, in order to maintain power and economic advantage over his competitors (though Finlay dealt with ‘traders’, the dicta is useful because it exemplifies the connection between the slander and the Plaintiff’s calling in the media business and the alleged misconduct therein). This is, without question, to speak of the Plaintiff in his calling and to impute to him unfitness for and/or misconduct in that calling. The slander is therefore actionable per se and the Prime Minister is liable for same without proof of special damage.
4. REPUBLICATION
The fourth issue is whether the Defendant is responsible for the republication of the slander in the four (4) newspaper articles and on the TTT Panorama broadcast, as alleged at paragraph 11 of the statement of claim (the said republications). In this case, the Plaintiff has sued on separate causes of action, both on the original publication (the slander in the Prime Minister’s address of the 30 th May, 1997) and on the republications (as stated in paragraph 11 of the statement of claim). In addition, the Plaintiff has pleaded and specifically relied on the said republications for the purpose of assessing damages (see Gatley 9 th ed, para. 6.30, p. 154; and Toomay v Mirror Newspapers (1985) 1 NSWLR 173 at 182).
Counsel for the Plaintiff submitted that the Prime Minister was liable in libel as a publisher for the said republications, because they were expressly and/or impliedly authorized by him. Further, that in any event the Prime Minister was liable for the damage caused by the republications, because the republications were in the circumstances of the case, the natural and probable result of the original publication (the Prime Minister’s address on the 30 th May, 1997).
Senior Counsel for the Defendant submitted on the 27 th July, 2000, that the Defendant would only be liable for the damages flowing from the slander, if the republications were the natural and probable result of the original publication – which he appeared to concede when he said: “It is true that when the Prime Minister speaks, his speeches are reported and widely published”. On the 27 th February, 2000 the submission of Senior Counsel for the Defendant, as I understood it, was that “the facts in this case do not admit to the interpretation: i. that the Defendant authorized the (re) publications; ii. or that he did anything to cause the speech to be published.” When asked by me about the relevance of the evidence that the Prime Minister’s office sent out an itinerary to TTT, accompanied by a note indicating that there should be full coverage, he replied: “That evidence does not make TTT an agent of the Prime Minister for the publication of that speech. It can be argued that one of the natural consequences would be the clip going on TTT. But that only goes to damage, not to liability”.
In fact, Senior Counsel for the Defendant submitted to the Court the learning in Halsbury’s Laws of England , 4 th ed, Vol. 28, para. 80, pp. 40-41, which reads as follows:-
The circumstances in which the original speaker is responsible for the repetition are: (1) where the original speaker authorised the repetition to the other person; (2) where the original speaker intended that the person to whom he uttered the slander should repeat it to the other person; (3) where the repetition of the slander to the other person was the natural result of the original publication to him who repeated it; or (4) where he to whom the original publication was made was under a duty to repeat the slander to the other person and the original speaker was aware, at the time of the original publication, of the facts and circumstances out of which that duty arose.
He also cited the learning in Duncan and Neill on Defamation , 2 nd ed, (1983), at pp. 38-40, which he submitted is a correct statement of the law and which states:-
RESPONSIBILITY FOR REPUBLICATION
8.14 In certain circumstances the publisher of defamatory matter may be liable not only in respect of the original publication but also in respect of the republication of such matter by someone else. These circumstances can be considered under the following headings:
(a) Where the defendant authorised or secured the repetition;
(b) where there was an obligation on the other person to repeat the words;
(c) where the repetition was the natural consequence of the publication by the original publisher.
WHERE THE DEFENDANT AUTHORISED OR SECURED THE REPETITION
8.15 If the defendant authorised the republication of the defamatory words by someone else, he will be liable not only in respect of the original publication but also in respect of the republication. For example, if the defendant makes a defamatory statement to a newspaper reporter intending that his words should be published in the newspaper or if he sends a defamatory letter to a newspaper for publication he will be liable for causing the publication in the newspaper as well as for the publication of the slander or libel (as the case may be) to the reporter or editor.
WHERE THE REPUBLICATION WAS THE NATURAL CONSEQUENCE OF THE PUBLICATION BY THE ORIGINAL PUBLISHER.
8.17 There are dicta which suggest that the original publisher may be liable even though he did not authorise or intend the republication and even though there were no circumstances imposing a duty on the original publishee to repeat the slander or libel, provided the repetition was the natural consequence of the original publication. Thus in Ratcliffe v Evans Bowen LJ said:
‘Verbal defamatory statements may, indeed, be intended to be repeated, or may be uttered under such circumstances that their repetition flows in the ordinary course of things from their original utterance. Except in such cases, the law does not allow the plaintiff to recover damages which flow not from the original slander but from its unauthorised repetition.’
And in Speight v Gosnay Lopes LJ said:
‘ . . . If the repetition of these words had been the natural consequence of the defendant’s uttering them, that would have been sufficient.’
8.18 It is submitted, however, that the original publisher will not be liable in respect of a subsequent republication merely because such re-publication was a natural or probable consequence of the original publication and that it is important to bear in mind words of Tindal CJ in Ward v Weeks :
‘It was the repetition of (the words) . . . which was the voluntary act of a free agent, over whom the defendant had no control, and for whose acts he is not answerable, that was the immediate cause of the plaintiff’s damage.’
It follows therefore that as a general rule the publishers of a newspaper will not be liable for the republication of their story in another newspaper.
8.19 The question of the liability of the original publisher is often relevant where a newspaper publishes a report of a speech made by the defendant in circumstances where the defendant knew that a reporter would be present. It is submitted that the speaker will not be liable in respect of the report unless it can be shown that he authorised or in some way secured its publication , and that Hallett J adopted the correct approach in Mc Whirter v Manning where he said:
‘It was argued that because Mr. Manning knew that there were reporters at the meeting and that a report of what he said might and probably would appear in the printed report he must be taken as having caused the publication of the defamatory words in the report . . . . It was plain that once the words had flown out of Mr Manning’s mouth he did nothing further whatever to procure publication of those words, or some or any of them, in a printed form. From then onwards it was other people who got them into print.’
From the above, it is quite clear that where the original publisher:-
a. expressly or impliedly authorized the republication, or b. intended that it be repeated, or c. was aware at the time of original publication that the person (s) to whom it was so published was under a legal or moral duty to repeat the words, the original publisher would be liable in respect of the subsequent publication. However, Duncan and Neill differ from Halsbury with respect to the category where the repetition was the natural consequence of the original publication. In this latter case, Duncan and Neill opine that though there is authority to suggest that liability may flow, that ought not to be the position, citing Ward v Weeks (1830) & BMG 211 at 215 and Mc Whirter v Manning (1954) in support.
In Slipper v B.B.C. (1991) 1 QB 283 at 294 to 296, similar arguments and the same authorities offered to this Court by Senior Counsel for the Prime Minister were advanced before the Court of Appeal in England. They were dealt with in this way by Stocker L. J.:-
In my view Ward v Weeks does not establish the law relating to republication of libel. Further, in my view, the law relating to republication in defamation cases is but an example of the rules of novus actus in all cases of tort or, where applicable, breaches of contract where that issue arises. In a defamation case where there has been republication the question whether or not there has been a breach in the chain of causation inevitably arises but such cases are not in a special category related to defamation actions but are examples of the problem and will fall to be decided on general principles and in the light of their own facts as established. They are not specific or special rules peculiar to defamation actions. All the cases cited, including Ward v Weeks , are examples, on their own facts, of cases concerned with novus actus - breaches of the chain of causation.
A century earlier, in Speight v Gosnay (1891) QBD 231 Lopez L. J. had stated:-
But there are certain cases where an action against the slanderer may be maintained for the repetition of the slander. These cases may be divided into four classes . If the defendant had authorised the mother to repeat the slanderous words to Galloway, the action could have been sustained. But there is no evidence of any such authority. Then again, if the defendant had intended that the words should be communicated to Galloway, that would have done. But there is no evidence of any sort or kind to warrant that suggestion. Again, if the repetition of these words had been the natural consequence of the defendant’s uttering them that would have been sufficient; but that cannot be established here. Lastly, there is authority for this proposition, that if it could have been made out that there was a moral obligation on the mother to communicate the slander to her daughter, and on the daughter to communicate it to Galloway, the action would have been maintainable.
It is worth noting in this regard that Mc Gregor on Damages , 15 th ed, (1988) at para. 1652 p. 1045 criticizes Ward v Weeks and at para. 1653, p. 1046 adopts the four (4) categories stated by Lopez L. J. in Speight v Gosnay supra. And, that Gatley on Libel and Slander 9 th ed, (1998) at para. 6.31, p. 155, states:-
It may be that the original publisher should only be liable as a publisher of the republished statement where he authorised or intended it, but some of the cases speak in broader terms and assume that the same principles relating to the responsibility of the defendant apply to both situations. In any event, the starting point is that the defendant is prima facie not liable because the voluntary act of a third person breaks the chain of causation. However, the defendant is liable for the republication or for the damage caused by it.
(1) where he authorised or intended the republication;
(2) where the person to whom the original publication was made was under a duty to repeat the statement;
(3) where the republication was, in the circumstances of the case, the natural and probable result of the original publication.
Cases (1) and (2) are probably but examples of the broad principle in (3).
For myself, I accept the criticisms made of Ward v Weeks and of Duncan and Neill as stated above in Slipper v B.B.C In my opinion, I see no good or logical reason why in the appropriate circumstances, the original publisher should not be liable for a republication of a slander as a separate cause of action (as well as for the damage that flows from same) in all of the four (4) categories stated by Lopez L. J. in Speight v Gosnay (and as summarized in Gatley , supra).
To adopt the words of Bingham L. J. in Slipper v B.B.C : “The law would part company with the reality of life if it held that the damage caused by publication of a libel began and ended with publication to the original publishee. Defamatory statements are objectionable not least because of their propensity to percolate through underground channels and contaminate hidden springs” (at page 300 C). Ultimately the issue is reduced to a question of causation, to be determined in the circumstances of each particular case.
Further support for the opinion I have stated above can be found elsewhere in the Commonwealth.
In Hay v Brigham (1905) 11 DLR 148, the evidence was that the defendant had been interviewed by a reporter who took a statement which was published the following day. It was not in terms stated that the defendant knew that his interviewer was a reporter, or was connected with a newspaper, or that he intended that his statement should be published. What the defendant had asserted was that his object in making the statement was to “put himself right before the people of Ottawa and of the Dominion”. It was held that there was evidence to “ infer that the Defendant knew that he was speaking to a reporter and speaking for publication and that he authorized what he said to be published in a newspaper ” (at p. 153). A material consideration in coming to that conclusion was that since “ the Defendant’s object was to put himself right . . . with the public, he must have known that this was not likely to be accomplished by a mere private explanation to the person he was speaking to ” (at p.153).
In Douglas v Tucker 1952 1 DLR 657, the defendant, who was Premier of a Province in Canada, made an election speech which was subsequently published in the newspaper. Hay v Bingham was approved, as well as a quote from Odgers on Libel and Slander , which stated:-
Thus, it (a request to print or publish) may be inferred from the defendant’s conduct in sending his manuscript to the editor of a magazine or making a statement to the reporter of a newspaper, with the knowledge that they will be sure to publish it, and without any effort to restrain their so doing (at p. 667).
In Stopforth v Goyer (1978) 20 OR (2d) 262, Lieff J. summarised the facts and law as follows (at p. 263):-
The alleged defamatory remarks were said to have been spoken by the defendant of the plaintiff to reporters of the printed and electronic news media who were present in the Government lobby in the Parliament Buildings in Ottawa on June 1, 1976.
It is settled law that where a person speaks defamatory words to the press with the intention or knowledge that they will be republished, the speaker is responsible in libel rather than in slander.
When a politician of experience speaks to the press he impliedly, if not expressly, authorizes republication of his communication and is thus responsible for any libel
In St. Michael’s Extended Care Centre Society v Frost (1994) 6 WWR 718 (Alberta Queen’s Bench), the principle in Stopforth v Goyer quoted above was cited with approval. The defendant, an architect, made certain defamatory statements to a newspaper reporter, which were subsequently published. It was held that “the Defendant knew or should have known that anything he said to (the reporter) would be published and that by speaking to him he authorized the publication of the defamatory remarks ” (per Cawsey J. at p. 727).
Finally, in Sims v Wran (1984) 1 NSWLR 317, Hunt J., stated:-
Where a prominent politician such as the defendant makes a statement at a press conference, it may be taken without doubt that the natural and probable result of his act will be that his statement will be republished in the media, thereby making him responsible for that republication : Speight v Gosnay (1891) 60 LJQB 231 at 232; and usually in whatever form in which that republication takes place: Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 at 363 – 366.
In Sims the Defendant was the State Premier, who had made the impugned statements at a news conference, and which had received “wide and extensive distribution” throughout Australia, on television, radio and in the press.
On the facts before me, the Prime Minister’s address was delivered with the aid of a prepared text or notes. His office gave notice of it to TTT and authorized full overage of it (without any restrictions). Further, in his defence, the Prime Minister purported to raise the defence of a reply to an attack, that attack being the Plaintiff’s criticism of the Green Paper on Media Reform in his speech of the 7 th May, 1997. In these circumstances, it is more than likely that the Prime Minister intended that his “reply to the Plaintiff’s attack” would receive the same or similar coverage that “the Plaintiff’s attack” had generated. Moreover, it is clear that the TTT cameras had followed the Prime Minister around, so he must have known of their presence, and of the TTT microphone taped onto the podium before him. Further, this was the inaugural celebration of Indian Arrival Day and the Prime Minister was delivering the feature address. It would have been unprecedented in a society such as Trinidad and Tobago for such an event and address not to be covered by all media houses, if not directly, then by the sharing of information (as the Plaintiff testified was the practice). In my opinion, the Prime Minister’s submitted intention to put his defence to the Plaintiff’s alleged attack before the people of Trinidad and Tobago, is consistent with the inference that the Prime Minister was speaking for publication and that he had authorized what he said to be published in the newspapers on television.
In this context, against the background of the Green Paper controversy ignited by the Plaintiff a few weeks earlier and still burning throughout the country, the Prime Minister must have known that to identify and single out the Plaintiff and to defame him in the way he did, would receive the most widespread and extensive coverage, not only in Trinidad and Tobago but through the Caribbean . . . which is exactly what happened. To adapt the words of Lieff J. in Stopforth v Goyer , when a Prime Minister makes a direct charge of racism against a prominent named individual in a public address at which the media are present, he impliedly if not expressly authorizes republication of his communication and is thus responsible for any libel.
It is relevant also that the Plaintiff was a prominent personage in Trinidad and Tobago, as well as internationally and that the Defendant was the first Prime Minister of East Indian descent speaking at the first Indian Arrival Day Celebrations. In my opinion, such a combination of factors was bound to generate widespread interest and coverage of the Prime Minister’s slander of the Plaintiff, which he must have known. It is important to note, that as long as the republications adhere to the ‘sense and substance’ of the original publication, it matters not whether the entire and exact wording of the Prime Minister’s address was republished. The relevant question is whether the ‘substance and the sting’ of the slander had been republished. Thus there is liability where a condensed but correct account was republished (see Gatley , 9 th ed, p. 156, para. 6.32) – as was the case here.
In my opinion, in all the circumstances of this case, the Prime Minister both impliedly authorized and intended that his slander of the Plaintiff would be published throughout the length and breadth of Trinidad and Tobago and abroad. For these reasons alone he is liable in libel for the impugned republications. However, I also hold that it is without any doubt that the natural and probable result of the Prime Minister’s slander of the Plaintiff, was that the same would have been republished and repeated throughout the length and breadth of Trinidad and Tobago and abroad.
In light of all of the above, it is the opinion of this Court that the Defendant is liable for damages for slander, actionable per se because the words spoken were spoken of the Plaintiff in the way of his calling in the media business. Also, that the Defendant is separately liable for damages for libel for the republication of the said slander in the newspapers and on the television, as pleaded at paragraph 11 of the statement of claim. In the circumstances of this case, the latter liability does not affect the quantum of damages payable overall, since these said republications have been specifically pleaded as going to the assessment of damage flowing from the original slander (paragraph 15 of the Statement of Claim).
However, before moving onto the assessment of damages, I am duty bound to deal with the following, in the event that my opinions stated above are thought to be erroneous.
1. THE DEFENCE OF QUALFIED PRIVILEGE; REPLY TO ATTACK
First, the issue of the defence of qualified privilege, reply to an attack. I have already ruled that on the pleadings, this defence is not available to the Defendant in this case. If I am wrong in that determination, then I would resolve this issue as follows.
Senior Counsel for the Prime Minister argued that the address of the 30 th May, 1997 was a ‘ceremonial speech’ in which the Prime Minister was “responding to the onslaught made by the Plaintiff on the Government’s Green Paper” and was therefore a privileged occasion. In his opinion, the Plaintiff “made a violent and vicious attack against the Government’s Green Paper”, though he agrees that any such attack was not on the Prime Minister personally. This Court was taken in detail through the Plaintiff’s speech of the 7 th May, 1997 and specific portions that, it was suggested, demonstrated the viciousness of the Plaintiff’s attack. In addition, large tracts of the Aide Memoire were read (quoted hereinabove), to demonstrate that in the Plaintiff’s said speech, there were several references to racism. Then, quoting from ‘extract four’ of the Aide Memoire, Senior Counsel for the Prime Minister submitted that on the evidence as a whole, the Plaintiff had charged the Prime Minister with probably being more responsible for promoting racism in Trinidad and Tobago than anyone else. Thus it was submitted, that not only was the occasion of the Prime Minister’s speech of the 30 th May, 1997 a privileged one because the Prime Minister was responding to the Plaintiff’s attack on his Government’s Green Paper, but also, the Prime Minister’s defamatory remarks about the Plaintiff (in calling him a pseudo racist), were not so unconnected to the attack as to cause the Prime Minister to lose the protection of qualified privilege.
In summary, the argument of the Prime Minister was that his was a response to an attack, which response was primarily that “the Ken Gordons wanted to maintain his monopolistic advantage over his competitors.” Further, that if the Court held that the references to pseudo racists applied to the Plaintiff, then those references were not so unconnected to the Plaintiff’s said attack, to deny the Prime Minister the protection of qualified privilege.
In analysing this defence, there are three limbs to be considered. First, one must ascertain whether the occasion was in fact one of qualified privilege. Second, assuming that question is answered in the affirmative, one must determine whether the defamatory statement was covered by the privilege or was so extraneous to same that no privilege applied. Third, assuming that both of the above questions are answered in the affirmative, then one must decide whether the defamatory statement was made with malice, with the consequence that the privilege is lost. [see, Adam v Ward (1917) AC 309 at p. 318 (Lord Finlay, LC); pp. 320-321 (Earl Loreburn); p. 327 (Lord Dunedin); pp. 339-340 (Lord Atkinson)].
In the 1935 Irish case of Nevin v Roddy Fitz Gibbon J. expressed the opinion of that court in this way:-
The decision in O’Donoghue v Hussey was again considered by the Courts of this country in Dwyer v Esmonde . It was held by the Court of Exchequer (Palles C.B., FitzGerald and Dowse BB.), that “where a party publishes charges affecting the conduct and character of another, the public at large have, as against him, such a right of judgment upon these charges as renders that public interested in everything material to their judgment being just and true, and the party aggrieved, having an interest in vindicating his character, has a privilege to publish matter of vindication and defence, and all such other matter as is material to the public forming such just and true judgment.
“But where, on the face of the answering publication, statements appear which are in the nature of affirmative and independent charges of misconduct unconnected with and having no bearing upon the conduct of the party aggrieved, that is not a mere matter of excess, the party aggrieved has no privilege in relation to these statements, and a plea relying on such privilege is bad on demurrer”. Palles C.B., in delivering the judgment of the Court of Exchequer, stated the law as follows:-“To constitute a privileged occasion, not only must the person publishing and the persons to whom the publication is made have corresponding interests or corresponding duties, but such interests must be in, or such duties in reference to, the subject matter of the communication. The determination, therefore, that any particular publication is privileged involves a consideration, as matter of law, of the nature of its subject matter.
“It is true that, when the occasion, has been shown to be privileged, and the question of malice alone remains, the jury can consider the language used, and if stronger than called for by the occasion, can infer from it the existence of malice. But it has, I think, been to some extent overlooked, in the argument before us, that this consideration by the jury is wholly distinct from the pervious determination (by the Judge, if the question arise at the trial-by the Court, if, as here, it comes before it on demurrer) that the subject matter of the communication is one in, or in reference to, which the interest or duties I have referred to exist. The latter is of the essence of the existence of a privileged occasion; the former becomes material only upon the assumption that the occasion is privileged.
And at page 418:-
In the present case the privilege claimed is one of self-defence—that the defendant was justified in publishing a statement in answer to the libel admittedly published against him by the plaintiff - thereby explaining and accounting for the oppressive conduct towards the present plaintiff, imputed to him in that libel. It is admitted that a privilege of the nature of that claimed by the defendant extends only so far as to enable him to repel the charges brought against him - not to bring fresh accusations against his adversary. This privilege is in fact a shield of defence, not a weapon of attack, And if the charges contained against the plaintiff in the document published by the defendant clearly appeared to be without any reasonable connexion with the charges brought against the defendant by the plaintiff, I should agree with the decision of the Court of Exchequer.
[See also; Bennett v Stupich 125 DLR 743 at 747-748; Bardyn v Botink 126 DLR (4 th ) 609 at 628; Douglas v Tucker (1952) 1 DLR 657 at 665; Pearce v Symes (1909) 28 NZLR 562 at 563; and News Media Ownership v Finlay (1970) NZLR 1089 at 1094-1095].
In Gatley , 8 th ed, this defence is summarized at para. 514, p. 218 as follows:-
514. Reply to attack. Again, a person whose character or conduct has been attacked is entitled to answer such attack, and any defamatory statements he may make about the person who attacked him will be privileged, provided they are published bona fide and are fairly relevant to the accusations made. The law justifies a man in repelling a libellous charge by a denial or an explanation. He has a qualified privilege to answer the charge; and if he does so in good faith, and what he publishes is fairly an answer, and is published for the purpose of repelling the charge, and not with malice, it is privileged, though it be false.
Thus, assuming that there is an initial attack [there is no privilege if the plaintiff has merely provoked controversy, without making an attack – see Gatley supra at p. 218, fn. 37, citing Church of Scientology v Anderson (1980) WAR at 81], the person attacked is entitled to respond and defend himself. However, he loses the protection of the law, if in responding he goes beyond defence and proceeds to offence; or if there is malice in his response. It is also important to note, that the facts creating privilege must be proved, and the onus is on the defendant to do so, unless they are already in evidence – see Gatley , 8 th , p. 576, para. 1409.
(A) NO EVIDENCE OF ‘REPLY’
In my opinion, there is absolutely no evidence before this Court to show that the Prime Minister’s address of the 30 th May, 1997, purported to be a response to the Plaintiff’s speech of the 7 th May, 1997 and his criticism of the Green Paper. That is, there is no evidence that the Prime Minister’s address was a reply to any specific attack by the Plaintiff.
The only evidence of the Prime Minister is the video recording of his said address. No where in that address does the Prime Minister make any reference to the Green Paper, or to the Plaintiff’s said speech, or the Plaintiff’s criticisms (“attack”) of the Green Paper. Significantly, the Prime Minister’s said address does contain particulars of the many “shapes and sizes” of the pseudo racists who have divided the society and who are against national unity, yet those who opposed or condemned the UNC Government’s Green Paper on media reform was not listed among them.
Therefore, unlike all other cases where this defence has been raised, in this case the purported reply makes no reference, express or implied, to the alleged attack, or to the fact that this ‘reply’ is in fact a reply or defence to any such attack. Thus, on the first limb this defence fails. In my opinion, the occasion was not one of qualified privilege.
(B) COUNTER-ATTACK
If I am wrong on the above, in my opinion the Prime Minister’s ‘reply’ was wholly unconnected to the alleged ‘attack’ and irrelevant to his ‘defence’ and further was neither a reply, nor a defence at all, but rather a counter-attack on the Plaintiff, going beyond anything that was necessary to refute the Plaintiff’s criticisms of the UNC Government’s Green Paper on Media Reform.
In my opinion, it has not been established on a balance, that the Plaintiff’s speech of the 7 th May, 1997 amounted to an attack on the Prime Minister’s character, or exceeded legitimate criticism of a government green paper put out for public debate. The Common Law has been vigilant to protect the right of citizens in democratic societies to freely and even falsely criticise governments without fear of liability for defamation. [In the United States and England, restraints upon the ‘chilling’ effect of libel law and political and public debate have come by way of restrictions on liability. In Canada, the same result has been achieved by limiting the awards of general damages. See: Derbyshire CC v Times Newspapers Ltd ; Libel and Freedom of Speech in English Law , by Eric Barendt, 1993 Public Law, 449; and Derrickson v Tomat 88 DLR 401, 403-411]. As Wood J. A. stated in Derrickson v Tomat (at p. 405):-
In a democratic society which honours the freedom and security of individuals as well as the community, political motivation, even of the highest order, can never justify the defamation of one’s opponent
And further, that:-
The symbiosis between political democracy and freedom of thought, belief and expression has long been recognized and accepted in those countries constitutionally committed to democratic forms of government. In Reference re: Alberta Legislation, [1938] 2 D.L.R. 81 at p. 107, [1938] S.C.R. 100, Chief Justice Duff described it in these terms:
The statute contemplates a parliament working under the influence of public opinion and public discussion. There can be no controversy that such institutions derive their efficacy from the free public discussion of affairs, from criticism and answer and counter criticism, from attack upon policy and administration and defence and counter-attack; from the freest and fullest analysis and examination from every point of view of political proposals. This is signally true in respect of the discharge by Ministers of the Crown of their responsibility to Parliament, by members of Parliament of their duty to the electors, and by the electors themselves of their responsibilities in the election of their representatives.
The right of public discussion is, of course, subject to legal restrictions; those based upon considerations of decency and public order, and others conceived for the protection of various private and public interests with which, for example, the laws of defamation and sedition are concerned. In a word, freedom of discussion means, to quote the words of Lord Wright in James v Commonwealth . . . “freedom governed by law.”
Even within its legal limits, it is liable to abuse and grave abuse, and such abuse is constantly exemplified before our eyes; but it is axiomatic that the practice of this right of free public discussion of public affairs, notwithstanding its incidental mischiefs, is the breath of life for parliamentary institutions.
The same thoughts provoked Dickson J. (as he then was) to note in Chernesky v Armadle Publishers Ltd. (1978), 90 D.L.R. (3d) 321, [1979] 1 S.C.R. 1067, 7 C.C.L.T. 69, at pp.343-4 of the report:
A free and general discussion of public matters is fundamental to a democratic society. The right of persons to make public their thoughts on the conduct of public officials, in terms usually critical and often caustic, goes back to earliest times in Greece and Rome. The Roman historian, Tacitus, spoke of the happiness of the times when one could think as he wished and could speak as he thought (1 Tacitus, History , para. 1). Citizens, as decision-makes, cannot be expected to exercise wise and informed judgment unless they are exposed to the widest variety of ideas, from diverse and antagonistic sources. Full disclousre exposes and protects against false doctrine.
Similar ideas have been expressed in America.
In Whitney v People of State of California, [1927] USSC 129; 274 U.S. 357 (1927) at pp. 375-6. Justice Brandeis delivered his famous and often-quoted rationale for the First Amendment:
Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law – the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.
In this context it is worth noting that the Constitution of Trinidad and Tobago expressly provides for the right to express political views and for freedom of conscience, thought and expression.
I am of the opinion that the Plaintiff, in his speech of the 7 th May, 1997, was doing not only what the UNC Government had expressly invited in its Green Paper on Media Reform, but what was within the ambit of his Constitutional Rights – criticising freely, even if severely, suggestions articulated by a sitting government. His criticisms were rational, following logically upon stated premises, even if those were based on the subjective interpretation of experience and challenged the legitimacy of the motives of the UNC Government in proposing the suggestions in the Green Paper. At the heart of the Plaintiff’s criticisms was a declared intent to protect and defend press freedom from arbitrary governmental control. It was a speech that addressed issues and not persons, even if the intention of the proposers was called into question.
Yet, nowhere in the Prime Minister’s address, were those issues which were raised and identified by the Plaintiff in his speech of the 7 th May, 1997, mentioned or avered to. Nowhere in the Prime Minister’s address were the Plaintiff’s assumptions and/or opinions considered, analysed or refuted. Assuming that the Prime Minister was entitled to reply or defend against the Plaintiff’s charges made against the Green Paper, he was not entitled to make counter-attacks against the Plaintiff that were unconnected to those charges. A response to an attack is protected by qualified privilege, provided that response is “germane and reasonably appropriate to the occasion”, provided it is “fairly relevant to the accusations made.”
In this case, there is no cogent evidence to support the proposition that the Prime Minister’s labelling of the Plaintiff as a pseudo-racist, who used racism to resist national unity and to maintain his monopolistic advantage over his competitors in the media business, was connected to or fairly relevant to, or germane to the Plaintiff’s criticism of the Green Paper. In my opinion, this second limb of this defence of the Prime Minister must also fail.
(C) MALICE
Assuming that I am also wrong on this second aspect of the issue, the question of malice arises.
It is important to note that the Prime Minister has not raised a defence of justification, which could only be raised where a defendant has clear and sufficient evidence of the truth of the imputation. It is obvious that on the evidence in this case the Prime Minister could never have honestly or reasonably believed that the Plaintiff was a pseudo-racist (conceded by Senior Counsel for the Prime Minister). Further, the Prime Minister has in his defence abandoned the plea of fair comment on a matter of public interest, which included the plea that the words were spoken in good faith and without malice upon a matter of public interest (abandoned only at the beginning of the closing speeches).
It is also clear that in May 1997, the issues surrounding the Green Paper were matters of public interest. However, for a defence of fair comment to succeed, the comments made on the matter of public interest must be made honestly and without malice, and the facts upon which they are based must be true (for the comment to be fair) – see Reynolds v Times Newspapers [1999] UKHL 45; (1999) 4 AER 609 at 614 j – 615 l. Thus, it is clear that on the evidence in this case, the Prime Minister did not honestly believe that the Plaintiff was a pseudo-racist. Further, if the Prime Minister did believe that the Plaintiff wanted to maintain his monopolistic advantage over his competitors in the media, and that is why he criticised the Green Paper (as was advanced before this court), he nevertheless abandoned this defence. It should be noted that on the evidence about the media houses that were in existence in 1997, there was no basis for any conclusion that the CCN group enjoyed a monopolistic advantage over its competitors.
Nevertheless, the Prime Minister has maintained that his remarks about the Plaintiff were a reply to an attack. I have commented on the lack of a defence of justification and the abandonment of the defence of fair comment on a matter of public interest, as a lead up to make the point that in my opinion, the Prime Minister was actuated by malice when he labelled the Plaintiff a pseudo-racist who opposed national unity and used racism to maintain his monopolistic advantage of his competitors in the media business.
On the evidence before this Court, it is clear that the Prime Minister did not and/or could not reasonably believe the truth of the allegations that he made against the Plaintiff. Not only does the law state: “It is not comment . . . grossly to misrepresent the conduct of a public man and then to hold him up to execration for his alleged wrong doing” (Windeyer J. in Christie v Robertson (1889) 10 NSWLR 163), but also: “The principle upon which the law of qualified privilege rests is this:- that where words are published which are both false and defamatory the law presumes malice on the part of the person who publishes them” (Bankes J. in Smith v Streatfield (1913) 3KB 769-770).
Gatley , 8 th ed, states:-
768. Untruth of words. Where words are published on a privileged occasion, the mere proof that they are false is not evidence of malice. Even though the statement should be untrue in fact, the [defendant] will be held justified by the occasion unless it can be shown to have proceeded from a malicious mind. “Mere falsehood is certainly no disproof of bona fides.” But proof that the defendant knew that the statement was false or that he had no genuine belief in its truth when he made it would usually be conclusive evidence of malice. “If a man is proved to have stated that which he knew to be false, no one need inquire further. Everybody assumes thenceforth that he was malicious, that he did do a wrong thing from some wrong motive.” “Indeed, it is difficult to imagine better proof of malice than the promulgation of an injurious statement in the knowledge of its falsity.” “If it be proved that he did not believe what he published was true this is generally conclusive evidence of express malice . . .” “If he publishes untrue defamatory matter recklessly without considering whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false.” But failure to correct a statement which he subsequently discovers to be false is no evidence of malice on the part of the defendant if he honestly believed the statement at the time when he made it. It would be otherwise if he knew that the statement was false when he made it.
In my opinion, this statement of the law in Gatley is both an accurate summary of the law and is directly relevant to the facts of this case [see also Horrocks v Lowe (1974) 1 AER 662 at 665 G (Viscount Dilhorne) and at 668 – 671 (Lord Diplock)].
There is no doubt in my opinion, that when the Prime Minister published these defamatory allegations about the Plaintiff, he did so maliciously, knowing that the same were untrue or having no genuine belief in their truth (or reckless, not caring whether they were true or false). As Lord Diplock has pointed out in Horrocks v Lowe , the motive for making a defamatory statement about the Plaintiff on a privileged occasion is crucial. Lord Diplock then opined as follows: “‘Express’ is the term of art descriptive of such a motive. Broadly speaking, it means malice in the popular sense of a desire to injure the person who is defamed and this is generally the motive which the Plaintiff sets out to prove . . . . The motive with which a person published defamatory matter can only be inferred from what he did or said or knew. If it be proved that he did not believe that what he published was true this is generally conclusive evidence of express malice ” (at p. 669 d-e).
In my opinion, the Prime Minister when he defamed the Plaintiff, did so with express malice intending to injure the Plaintiff, in furtherance of a mind set of the Prime Minister later revealed in his own words, that “no one who attacked his Government would remain unscathed”. This unjustified attack by the Prime Minister on the Plaintiff in his Indian Arrival Day address, was in my opinion, actuated by malice and intended to scathe, to injure, hurt and damage the Plaintiff. Indeed, the metaphor classically associated with scathing, is the image of destruction by fire: “As when Heavens Fire Hath scath’d the Forrest Oaks, . . With singed top their stately growth though bare Stands on the blasted Heath” - Milton.
On the evidence before this Court, this malicious intention of the Prime Minister only arose after the Plaintiff criticised the UNC Government’s Green Paper and because of the national support that that criticism invoked and its associated scathing of the UNC Government over its proposed Green Paper on Media Reform. Though the Prime Minister obviously and admittedly held the Plaintiff in the highest regard and did and could not reasonably have believed that he was a pseudo racist who was against national unity and who used racism to maintain a monopolistic advantage in the media business, the Prime Minister was so incensed by the Plaintiff’s criticisms and the resulting onslaught on the UNC Government’s position on Media Reform, that the Prime Minister deliberately set out to defame the Plaintiff (despite his voiced apology to the Plaintiff for the Attorney General’s attack on him) and to accuse him of racism on a most provocative occasion, the first Indian Arrival Day celebrations. What was particularly repugnant about the Prime Minister’s defamatory attack, was not only the nature of the defamation, but also the context and motive for launching same.
In Hector v A. G. of Antigua & Barbuda (1990) 2 AER 103, Lord Bridge of Harwich delivering the opinion of the Privy Council (which dealt with the unconstitutionality of a law making it a criminal offence to print or distribute any false statement likely to undermine public confidence in the conduct of public affairs), stated (at page 106 c – 9):-
In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the most insidious and objectionable kind. At the same time it is no less obvious that the very purpose of criticism levelled at those who have the conduct of public affairs by their political opponents is to undermine public confidence in their stewardship and to persuade the electorate that the opponents would make a better job of it than those presently holding office. In the light of these considerations their Lordships cannot help viewing statutory provisions which criminalises statements likely to undermine public confidence in the conduct of public affairs with the utmost suspicion.
In Derbyshire CC v Times Newspapers Ltd. [1992] UKHL 6; (1993) 1 AER 1011, Lord Keith in arriving at the position taken by the House of Lords, that a local (public) authority did not have the right at common law to maintain an action for damages for defamation as it would be contrary to public interest, stated:-
It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech.
In coming to this conclusion the House of Lords endorsed the opinion cited above in
Hector v A.G. of Antigua
, and similar opinions expressed in two decisions of the Supreme Court of the United States, in
City of Chicago v Tribune Co
. (1923) 307 Ill 595, and
New York Times Co. V Sullivan
[
1964] USSC 40; (1964) 376 US 254, where the ‘chilling effect’ of governmental actions for defamation on the freedom of speech, considered so sacroscant
in a democracy, was roundly criticised in the following terms (
City of Chicago
case at pp. 607 – 608):-
It follows, therefore, that every citizen has a right to criticise an inefficient or corrupt government without fear of civil as well as criminal prosecution. This absolute privilege is founded on the principle that it is advantageous for the public interest that the citizen should not be in any way fettered in his statements, and where the public service or due administration of justice is involved he shall have the right to speak his mind freely.
This way of thinking is by no means the preserve of Western Democratic States. In the East, Mahatma Mohandas Gandhi has stated this principle in the following radical way: “Civil disobedience is the inherent right of a citizen. He dare not give it up without ceasing to be a man. Every state puts down criminal disobedience by force. It perishes if it does not. But to put down civil disobedience is to attempt to imprison conscience.” All of the above stated opinions are relevant to Trinidad and Tobago, where the Constitution rights and freedoms cited earlier in this judgment exist.
In my opinion, the motive of the Prime Minister in maliciously defaming the Plaintiff was not simply to cause him injury, but also to so malign and ridicule him publicly that it would send a message to all who would criticise his UNC Government, that they would not escape unscathed . . . even when they were exercising their constitutional right of free speech, and their democratic right to criticise a government. Such a motive runs contrary to the principles of jurisprudence upon which all democratic societies are based and is nothing but an extra legal variant of the condemned ‘chilling effect’ of actions for defamation by public/governmental authorities. Such action amounts to oppressive conduct. And in my opinion, such conduct is equally condemnable, and the opinions cited above of Lord Bridge and Lord Keith equally applicable.
For all of the above, I am of the opinion that even if the defence of reply to an attack was available to the Prime Minister, it is bound to fail.
I have already ruled that on the pleadings exemplary damages are not payable to the Plaintiff. If I am wrong in that determination, then I would resolve this issue as follows.
Counsel for the Plaintiff submitted that the Prime Minister’s conduct was oppressive . . . action by a servant of the government (citing Lord Devlin’s first category in Rooks v Barnard ), in that it was intended to curb and inhibit criticism of the UNC Government and in particular to curb and inhibit the Plaintiff and his media house’s criticism of the UNC Government.
In support, Counsel for the Plaintiff cited the House of Lords decision in Cassell v Broome [1972] UKHL 3; (1972) 1 AER 801, in which their Lordships commenting on the first category in Rookes v Barnard , stated:-
But I desire to say of the first that I would be surprised if it included only servants of the government in the strict sense of the word. It would, in my view, obviously apply to the police, despite A-G for New South Wales v Perpetual Trustee Co Ltd , and almost as certainly to local and other officials exercising improperly rights of search or arrest without warrant, and it may be that in the future it will be held to include other abuses of power without warrant by persons purporting to exercise legal authority. What it will not include is the simple bully, but because an adequate award of compensatory damages by way of solatium will necessarily have punished him. I am not prepared to say without further consideration that a private individual misusing legal powers of private prosecution or arrest as in Leith v Pope , where the defendant had the plaintiff arrested and tried on a capital charge, might not at some future date be assimilated into the first category. I am not prepared to make an exhaustive list of the emanations of government which might or might not be included. But I see no reason to extend it beyond this field, to simple outrage, malice or contumelious behaviour. In such cases a properly directed jury will not find it necessary to differentiate between what the plaintiff ought to receive and the defendant ought to pay, since the former will always include the latter to the extent necessary to vindicate the strength of the law. [Lord Hailsham, pp. 829 – 830].
With regard to the first I think that the context shows that the category was never intended to be limited to Crown servants. The contrast is between ‘the government’ and private individuals. Local government is as much government as national government, and the police and many other persons are exercising governmental functions. It was unnecessary in Rookes v Barnard to define the exact limits of the category. I should certainly read it as extending to all those who by common law or statute are exercising functions of a governmental character. [Lord Reid, p. 838].
There is not perhaps much difficulty about category 1; it is well based on the cases and on a principle stated in 1703-‘if public officers will infringe men’s rights, they ought to pay greater damages than other men to deter and hinder others from the like offences’ ( Ashby v White per Holt CJ). Excessive and insolent use of power is certainly something against which citizens require as much protection today; a wide interpretation of ‘government’ which I understand your Lordships to endorse would correspond with Holt CJ’s ‘public officers’ and would partly correspond with modern needs. [Lord Wilberforce, p. 965].
It would embrace all persons purporting to exercise powers of government, central or local, conferred on them by statute or at common law by virtue of the official status or employment which they held. [Lord Diplock, p. 873].
Counsel for the Plaintiff submitted that the Prime Minister was, at the time he was making his address, speaking as Prime Minister at a formal occasion of State business and speaking for the government. The occasion and address were therefore in the nature of a governmental function and the Prime Minister was performing a prime ministerial function, that is, a function as both the head of government and the chief spokesperson of the government.
If I had to decide this issue, I would agree that the broad interpretation to be given to “servants of government” would include a prime minister delivering the feature address at the first celebration of a national holiday. Further, I would also agree that the Prime Minister’s conduct and defamation of the Plaintiff in his address went beyond simple malice or contumelious conduct and was oppressive conduct, because it was designed to have the ‘chilling effect’ described above and condemned in the Derbyshire CC case. In my opinion, the Prime Minister’s slander of the Plaintiff was an “excessive and insolent use of power” which would legitimately attract exemplary damages, to thereby punish the Prime Minister for the willful commission of a tort and to teach the Prime Minister that such conduct will not pass with impunity.
It is worth noting that this application of Lord Devlin’s first category to cases of defamation, is acknowledged in Gatley , 9 th ed, p. 215, which states:-
Where the wrong involves oppressive, arbitrary or unconstitutional action by servants of the government . . .. As a matter of principle there seems no reason why this head should not apply to defamation , as where a government official libelled a person to bring pressure on him in a dispute with his department.
In my opinion, if I were called upon to do so, the circumstances of this case are such that the first category in Lord Devlin’s definition of exemplary damages, should properly be applied to the Prime Minister’s defamation of the Plaintiff and an award of exemplary damages considered.
DAMAGES
The principles to be applied in the assessment of damages are well known and need only be summarized. In this case there is no claim for special damages. General damages are awarded in defamation cases and are at large [see Cassell v Broome [1972] UKHL 3; (1972) 1 AER 801 at 824 a – e, 825 b – e and 826 d, per Lord Hailsham]. In a slander actionable per se (as is the case here) and in libel, damage is presumed. The purpose of general damages is to compensate the Plaintiff for the effects of the defamatory statement(s) and are said to serve three main functions: as a consolation for the distress, hurt and humiliation caused; to repair injury to reputation; and as a vindication of reputation (see Gatley , 9 th ed, para. 9. 2). The Plaintiff is therefore entitled to an award which satisfies the above three factors and therefore account must be had of, inter alia , the seriousness of the defamation, the mode and extent of its publication and the extent to which the Defendant persisted with the allegations (see Gatley , 9 th ed, para. 9.2). As Lord Atkin aptly put it, in Ley v Hamilton (1935) 153 L.T. 384 at 386:-
It is precisely because the real damage cannot be ascertained and established that damages are at large. It is impossible to track the scandal, to know what quarters the poison may reach: it is impossible to weigh at all closely the compensation which will recompense a man or a woman for the insult offered or the pain of a false accusation. No doubt in newspaper libel juries take into account the vast circulations which are justly claimed in present times.
In Trinidad and Tobago, the 1998 Central Statistical Office statistics for Newspaper Circulation in the material period (1997) was as follows:-
Newspaper Circulation 1996 1997 1998
Unit
Daily 000 140 143 152
Sunday 000 130 131 133
In this case, the coverage of the impugned defamation of the Plaintiff by the Prime Minister was carried in four (4) of the leading daily newspapers and on the National Broadcasting Network prime time news hour programme. The follow up discussions and debate on the entire issue clearly received the widest coverage within Trinidad and Tobago.
In addition to the above, the following are also relevant to an assessment of general damages in a case such as this: the conduct of the Plaintiff, including his reputation, position and standing in Trinidad and Tobago and in the international community; the nature (as opposed to the seriousness) of the libel; the absence of an apology or of any clarification that the allegation of pseudo-racist did not apply to the Plaintiff and that the reference to the Plaintiff in the Prime Minister’s address was a response to the Plaintiff’s criticisms of the UNC Government’s Green Paper on Media Reform (which were the defences advanced in this case); and the conduct of the Prime Minister (including the conduct of his defence) from the time the defamatory statements were published until judgment is delivered (see Gatley , 9 th ed, para. 9.2).
In this context, two points are particularly noteworthy. First, it has been said:-
In assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; the more closely it touches the plaintiff’s personal integrity, professional reputation, honour, courage, loyalty and the core attributes of his personality, the more serious it is likely to be (per, Sir Thomas Bingham, M.R. in John v MGN Ltd. (1997) QB 586 at 607).
Here, the Prime Minister’s defamation of the Plaintiff alleges that he is a racist without any integrity, a false racist. That is, the Plaintiff is a hypocrite, pretending to be a racist when he is really exploiting racism for personal gain and advantage. Also, it alleges that the Plaintiff is opposed to national unity and what is in a plural society, given its historical antecedents, in the best interests of Trinidad and Tobago. That is, the Plaintiff owes no real loyalty to Nation and nation building, or even for that matter to authentic news coverage and/or reporting, but only to self. In my opinion, these accusations touch the very core of the Plaintiff’s personhood.
Second, damages for defamation include an element of vindication. Again, as expressed by Sir Thomas Bingham M.R. in John v MGN Ltd :-
A successful plaintiff may properly look to an award of damages to vindicate his reputation: but the significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place. It is well established that compensatory damages may and should compensate for additional injury caused to the plaintiff’s feelings by the defendant’s conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise, or cross-examines the plaintiff in a wounding or insulting way.
Thus damages for defamation are intended in part as a vindication of the Plaintiff to the public. As Windeyer J. said in Uren v John Fairfax and Sons Ltd. (1966) 117 CCR 118 at 150:-
It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is simply because he was publicly defamed. For this reason, compensation by damages operates in two ways - as a vindication of the plaintiff to the public, and as consolation to him for a wrong done. Compensation is here a solatium rather than a monetary recompense for harm measurable in money.
[Approved in the House of Lords in Cassell v Broome [1981] EWCA Crim 5; (1982) 1 AER 801 at 824 and in the Privy Council in Gordon v Chokolingo P.C. Appeal No. 19 of 1986]. The Plaintiff is therefore entitled to damages simply because he was publicly defamed.
Within the scope of compensatory (general) damages (as opposed to exemplary damages), it is now accepted that the damages awarded can be increased if circumstances exist which may be reasonably considered to aggravate the damages. In this regard, the motives and conduct of the Defendant are relevant.
In Cassell v Broome Lord Reid (at p. 836) explained the distinction this way:-
Damages for any tort are or ought to be fixed at a sum which will compensate the plaintiff, so far as money can do it, for all the injury which he has suffered. Where the injury is material and has been ascertained it is generally possible to assess damages with some precision. But that is not so where he has been caused mental distress or when his reputation has been attacked - where to use the traditional phrase he has been held up to hatred, ridicule or contempt. Not only is it impossible to ascertain how far other peoples’s minds have been affected, it is almost impossible to equate the damage to a sum of money.
It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation
Frequently in cases before Rookes v Barnard when damages were increased in that way but were still within the limit of what could properly be regarded as compensation to the plaintiff, it was said that punitive, vindictive or exemplary damages were being awarded. As a mere matter of language that was true enough. The defendant was being punished or an example was being made of him by making him pay more than he would have had to pay if his conduct had not been outrageous. But the damages although called punitive were still truly compensatory; the plaintiff was not being given more than his due.
And as Lord Hailsham pointed out (at pp. 825 j – 826 a):-
In awarding ‘aggravated’ damages the natural indignation of the court at the injury inflicted on the plaintiff is a perfectly legitimate motive in making a generous rather than a more moderate award to provide an adequate solatium. But that is because the injury to the plaintiff is actually greater and as the result of the conduct exciting the indignation demands a more generous solatium.
[Followed and adopted by the Privy Council in Gordon v Chokolingo ].
In my opinion, there is abundant evidence of the conduct of the Prime Minister to justify increasing the award of compensatory (general) damages for the aggravation of the injury caused to the Plaintiff. These include the following: That the Prime Minister did not honestly believe that the Plaintiff was a pseudo-racist when he made that allegation against him and on the contrary held the Plaintiff in high regard immediately prior to the Plaintiff’s speech criticizing the Green Paper. That the Prime Minister made these allegations intending to hurt and injure the Plaintiff, where the Plaintiff had exercised his constitutional right to criticize the Green Paper and to question the government’s motives for introducing same. That the Prime Minister selected the occasion of the inaugural Indian Arrival Day celebrations to accuse the Plaintiff of racism and thereby to heighten the impact of the defamation and to maximize the public coverage and consequent injury to the Plaintiff. And this in a society where such an accusation (i.e. to accuse the Plaintiff of pseudo-racism in a multi-racial society such as Trinidad and Tobago), once published, would spread like a wild-fire and would be a matter of grave concern. As I have already opined, the Prime Minister’s allegations against the Plaintiff were not only unfounded and unjustified, but were made with express malice and with an oppressive intent to silence the Plaintiff and other would be critics of his UNC government. Further, in the conduct of the Prime Minister’s defence, the plea of fair comment was maintained right up to the closing speech for the Prime Minister, when it was then abandoned. Also, in the address of Senior Counsel for the Prime Minister, he insisted that the Plaintiff’s attack on the Green Paper was made out of ‘his own sense of self importance’, when no such suggestion was ever intimated to the Plaintiff in cross-examination or at all and formed no part of the Prime Minister’s case. And, as already pointed out, there has never been any apology or clarification by the Prime Minister for or about his allegations against the Plaintiff (that he was a pseudo-racist who sought to keep the people of Trinidad and Tobago divided in order to maintain a monopolistic advantage over his competitors in the media business), inspite of the wide public interpretation given to the Prime Minister’s speech. Instead, the evidence is that the Prime Minister’s response to all of this was that: “No one who attacked his government would remain unscathed.”
In my opinion, this evidence points to conduct by the Prime Minister that was willful and malicious and intended to injure the Plaintiff in the worst possible way, given the Plaintiff’s position and calling in society and the nature of the society. Such conduct would have substantially increased the injury and would have added greatly to the anxiety caused to the Plaintiff. In the Plaintiff’s own words:-
I felt absolutely violated . . . . This left me embarrassed, deeply distressed and publicly humiliated . . . even worse, because the Prime Minister then went on to say that no one who attacked his Government would remain unscathed.
Finally, the standing of the Prime Minister in the society is relevant to the assessment of damages. As Parke J. put it in M’Pherson v Daniels [1829] EngR 131; 109 ER 448 at 453:-
There may be a great difference in the degree of injury committed, arising from the character or condition of the party who utters the slander, or the number of persons in whose presence it is uttered.
[See also, St. Michael’s Extended Care Centre Society v Frost (1994) 6 WWR 718 at 719 and 728, where the source of the defamatory statement, a professional person, was considered relevant because such a person’s “opinion or statements may be given more weight”.]
In my opinion, this charge of pseudo-racism against the Plaintiff, because it was made by the Prime Minister of Trinidad and Tobago, would have been and was taken seriously not only nationally, but internationally (as the evidence shows). Not only would this factor affect, as it did, the wide coverage of the defamation, but it also would, as the Plaintiff testified it did, increase the Plaintiff’s distress and public humiliation. No doubt, because the Prime Minister made this charge, in a society such as Trinidad and Tobago, the damage to the Plaintiff will be irreparable.
On this issue of the assessment of damages, local authorities in other defamation cases have been cited to this Court. However, Counsel for the Plaintiff relied heavily on the case of Frank Solomon v The Trinidad Publishing Co. Ltd. Civ. App. 125 of 1987 (judgment of the Court of Appeal delivered in December 1989), and argued that the defamation in the instant case was several times more serious and damaging. He identified the following reasons for this: first, the allegation here was made by the Prime Minister; second, this charge received much wider publicity; third, the allegation here was direct and left nothing to be inferred; fourth, this allegation by the Prime Minister was made out of spite, with malice and with the intention of injuring the Plaintiff; and fifth, the Plaintiff was defamed while he was exercising his constitutional right to criticize the government and with the intention to curb further criticism.
Though all of the above are true, I think one must be very careful in comparing cases, especially in the area of defamation. No two cases are alike and this case is unlike any other cited to this Court.
In the Solomon case, $150,000.00 was awarded by the Court of Appeal, increasing the award of $30,000.00 by the master. That was in 1989, over one decade ago. In that case, justification for increasing the award was found in the failure of the master to consider sufficiently the following: the gravity of the libel itself; the status of Solomon in the society, the inadequacyor insufficiency of the apology and the ‘fall in the value of our currency’. In addition, the Court of Appeal used “as a starting point the sum of Bds. $20,000.00 awarded …… in 1969 in Advocate Co. v Husbands ’, thereby approving the consideration of regional awards in comparative defamation cases.
The most recent decision cited to this court was the Jamaican case of Abrahams v The Gleaner Co. Ltd. In that case the Plaintiff, a former minister of tourism, was charged with fraud, bribe-taking and corruption. In 1996 a jury awarded Ja $80,700,000. to the Plaintiff. On the 31 st July, 2000, two days before the final submissions in this case, the Court of Appeal of Jamaica delivered its decision in the Abrahams matter (Civ. App. No. 70/96), varying the quantum assessed to Ja $35 million (which is the equivalent of TT $3.5 million).
As with the Solomon case, the Abraham case is different from the instant case. In my opinion, the defamation in this case was much more serious and more widespread and irreparable than either the defamation in Solomon or Abraham . This particularly because of the nature and gravity of a charge of racism in a society such as Trinidad and Tobago and for all of the other factors identified above.
In my opinion, an appropriate award for compensatory general damage (including a factor for aggravation) is TT $600,000.00. Interest is payable on this sum at the rate of 6% per annum from the date of service of the writ until judgment (11 th October, 2000). There is no evidence of when the Writ of Summons was served, and I have therefore computed the interest payable from the date of entry of appearance (2 nd February, 1998), which amounts to TT$96,854.40. [In my opinion, if exemplary damages were to be awarded in this case, an appropriate sum would be TT$150,000.00].
In the circumstances the Defendant will pay the Plaintiff damages for defamation in the sum of $600,000.00 together with interest thereon as aforesaid.
The Defendant will also pay the Plaintiff’s costs certified fit for two advocate attorneys-at-law.
Dated this 11 th day of October, 2000.
P. Jamadar
Judge
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