Clive Edwards wins appeal to dismiss Magistrate's decision in Kele'a defamation case [1]
Friday, June 8, 2018 - 19:03. Updated on Friday, June 8, 2018 - 21:31.
By Linny Folau
William Clive Edwards won an appeal to dismiss a Magistrate's ruling over a 2012 defamation action against the Kele'a and its publishers. The Lord Chief Justice on June 6 in granting Edwards appeal said the Kele'a allegations were false and it was no excuse for 'Akilisi Pohiva to write one thing while saying that he meant to refer to something else.
Edwards brought the action in the Magistrate’s Court in 2012 for damages alleging that he had been defamed by the respondents in an article published on January 9, 2012.
Defamation Act
On May 29, 2012 the Magistrate dismissed the claim and held that Mr Edwards was not defamed and that the respondents had a defence of qualified privilege under section 10 of the Defamation Act, which led to this appeal.
He said the article was published under a headline that read: "The Minister of Justice has become a hiding place for some lawbreakers".
The sting of the article was that Mr Edwards was unfit to hold office as a Minister because he sheltered criminals and was a lawbreaker himself. The article was lengthy and spread over more than one page with sub-headlines for a range of topics, that were all concerned with the primary avowal that he was unfit to be a Minister.
Qualified Priviege
The Chief Justice said it was worth noting the particular components of the defence of qualified privilege as set out in section 10 of the Act. First, to attract privilege the communication must have been made bona fide, which translates as 'in good faith' but is used also to mean "honestly, sincerely or genuinely".
For the respondents' conduct, he was prepared to accept (certainly with reservation in respect of the land filling issue) that the subject matter of the Kele'a article was of public interest.
He said, in many instances the public would have an interest to know information that has a bearing on a Minister's suitability to hold his/her position in Government.
But in this case the defence of qualified privilege was not available to the respondents for two reasons. Firstly, because they acted irresponsibly in publishing the defamatory imputations against Mr. Edwards (whether they believed them to be true or not). Secondly, the respondents were indifferent to the truth of the defamatory imputations and misused the occasion of the publication, he said.
Publication responsibility
At the same time, the Chief Justice said it is a serious matter to allege that a Minister shelters criminals or is a lawbreaker himself and thereby unfit for office.
It must have been known by the respondents that in making these assertions they would cause significant injury to Mr. Edwards' reputation. The respondents did not advance any submissions before me that they exercised responsible standards of journalism in publishing the defamatory imputations. They had no reliable sources of information to support the defamatory imputation that Mr Edwards was sheltering lawbreakers, he said.
The editor appeared to have no editorial oversight and made no enquiries as to the accuracy of the article or the truth of the defamatory imputations contained in it. He relied entirely on Pohiva when authorising its publication. "Their explanation for the errors in the article were unsatisfactory because it is of no justification when publishing such serious allegations that mistakes commonly occur in newspapers or that the errors were overlooked," he said.
"It is no excuse either that Mr Pohiva wrote one thing but says that he meant to refer to something else."
The Chief Justice said the Magistrate had to consider all the circumstances of the article’s publication in assessing the respondent’s state of mind but he did not.
Largely false
The Magistrate's conclusion that the defence of qualified privilege was available to the respondents was incorrect. While the subject matter of the article was of public concern the content of the article was largely false, gravely defamatory, inadequately sourced and researched, absent of any explanation from Edwards and was not, therefore, information that the public should know, he said.
The Lord Chief Justice ruled that the judgment of the Magistrate’s Court in favour of the respondents be set aside.
"The question of any damages payable to Mr Edwards is reserved for further consideration. I reserve leave for him to apply for a further hearing if he wishes to address the question of damages. He is entitled to costs on this appeal, which are to be fixed by the Registrar if not agreed," said the Chief Justice.