The law of defamation has made several twists and turns over the last decade but one aspect of these convolutions is beyond doubt: it is the fact that it has become more media-friendly. Those who contemplate legal action against the media for insinuating that the purchase of Medpoint was a done deal before the tender procedures overlook the fact that the purchase of Medpoint raises matters of considerable public concern. The public has a genuine interest in receiving information on the subject. Mauritius, like so many other democracies with a written Constitution, has safeguarded the freedom of expression as a fundamental right. In a matter that is considered to be of high public importance the media will always have the upper hand, even if the publication is defamatory unless of course it is established that the author was actuated by malice.
The latest trend goes even further and provides the media with an even stronger defence (other than justification and privilege). It only has to satisfy a court of law that (a) that the publication was on a matter of public interest, and (b) the publisher was diligent in trying to verify the allegation having regard to (i) the seriousness of the allegation, (ii) the public importance of the matter, (iii) the urgency of the matter, (iv) the status and reliability of the source, (v) whether the plaintiff’s side of the story was sought and accurately reported, (vi) whether the inclusion of the defamatory statement was justifiable, (vii) whether the defamatory’s public statement lay in the fact that it was made rather than its truth, and (viii) any other relevant circumstances.
The decision of the Supreme Court of Canada in the case of Grant v Torstar Corporation has had profound resonance in common law jurisdictions and will no doubt have repercussions on our own law albeit that our law of defamation is French in origin. The Canadian decision adopts the reasoning of English judges, the same law lords who constitute the Privy Council, as expressed in the case of Reynolds v The Times Newspaper. The publication must be in relation to a matter of high public importance, and the Medpoint saga certainly passes that test.
The second condition is the fulfilment of freedom of expression in a free society. As laid down in the case WIC Radio 2009 2LRC where the reputation of the individual was at stake “an individual’s reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy, but nor should an overly solicitous regard for personal reputation be permitted to “chill” freewheeling debate on matters of public interest.”
Freedom of expression does not and should not negate responsibility in any event. It is vital that the media act responsibly in reporting facts on matters of public concern, holding themselves to the highest journalistic standards. This is the essence of the Judgment, that freedom of expression can only be meaningful in the wake of responsible journalism even though in the process the individual’s reputation pays the price of that freedom.
However the logic of proportionality dictates that the degree of diligence required in verifying the allegations should increase in proportion to the seriousness of its potential effect on the person defamed. In a sense not all defamatory imputations carry equal weight. The defamatory sting can range from a passing irritant to a blow that devastates the career and reputation of a person. An accusation of corruption is considered to be very serious. The publisher would be expected to have carried out a more thorough search before publication.
The proposed Media Complaints Bill which has been promised at the next sitting of the National Assembly will have to take the Reynolds principle into account and it is wondered whether the idea of an Ombudsperson for the media should not be mooted again.
Mauritius is small as a jurisdiction and the influence of the media can be tremendous and may constitute a risk to our institutions. The present remedy available to those defamed remains ineffective. The defamed public personality is advised to grin and bear the defamation in the meantime. His reputation is not to be treated as regrettable but unavoidable road kill on the highway of public controversy.
* Published in print edition on 11 March 2011