Supreme Court of Mauritius, 30 janvier 2020, 2020 INT 18 – STELINO ASSONNE V LE MAURICIEN LTD N ANOR

1 STELINO ASSONNE V LE MAURICIEN LTD N ANOR

2020 INT 18

CN:- 88/19 THE INTERMEDIATE COURT OF MAURITIUS (Civil Division) In the matter of:- Stelino Assonne Plaintiff v/s 1. Le Mauricien Ltd 2. Mr. Jacques Rivet Defendants JUDGEMENT In a plaint dated 28 March 2014, the plaintiff is praying for a judgement from this court condemning and ordering the defendants, jointly and in solido, to pay to the plaintiff the sum of Rs. 2,000,000 as damages. It has been averred in the plaint that the defendants have caused to be published in the edition of Le Mauricien, dated 14 March 2014, a photograph of the plaintiff, linked with the photographs of other persons cited in an article, identifying the latter on the said photograph as being one Desire Azie, referred to as a drug accomplice to a renowned drug trafficker in the said article. The plaintiff has averred that he is a police officer posted at the anti- drug and smuggling unit and that he is a person of good character, honour and reputation and that the defendants “have been at fault and/or negligent and/or imprudent in publishing that article together with the photographs” and by passing him off and identifying him as the said Desire Azie, a drug accomplice. Such acts and doings on part of the plaintiff have caused harm to the reputation of the plaintiff, as a result of which he has suffered prejudice and damages. The plaintiff deposed in terms of the averments of his plaint in court.

The defendants have in their plea averred that they are not aware that the photograph of the person who is being identified as Desire Azie in the article is in fact a photograph of the plaintiff and have put the plaintiff to the proof thereof. The defendants have further averred that the

2 plaintiff should have requested the defendants to make the necessary rectification as soon as possible had it been the case and had he believed that his reputation was at stake. In any event, the name of the plaintiff has never been mentioned in the newspaper and anyone knowing the plaintiff would be aware that he is not connected to the said offences. Furthermore, the whole article, including the photographs and the names associated to them, should be read together to ascertain the plaintiff’s identity. The defendants have therefore denied being indebted in the sum claimed. Alternatively, the defendants have averred that should the court find that the defendants are liable, the damages claimed are grossly exaggerated and should be reduced. The defendant did not adduce any evidence in court.

I have duly considered all the evidence on record as well as the submissions of both learned counsels. It is admitted by the defendants that the photograph of the plaintiff has mistakenly been published and associated with the name of Desire Azie in the Edition of Le Mauricien dated 14 March 2014, despite the fact that such averments were denied in the plea. Bearing in mind such facts and taking the evidence as a whole, I find that the plaintiff has established on a balance of probabilities that the defendants committed a “faute” by acting imprudently and negligently when they caused the photograph of the plaintiff to be published in the circumstances as averred.

It is however the contention of the defendants that no prejudice or damage were suffered by the plaintiff by such error on part of the defendants. It was further submitted by counsel that the persons who knew the plaintiff clearly understood the mistake and kept confidence in him whereas those persons who did not know him, would cast a rapid glance at the photographs and immediately forget about it after a few hours or probably after one or two days and they would clearly not remember that photograph and say that this is the person associated with drugs upon seeing the plaintiff. As for counsel for the plaintiff, he submitted that the plaintiff is not saying that his superior, his colleagues or his family do not trust him but what he is saying is that he feels injured deep down in his heart. He added that what is important is how the plaintiff felt at that time as a police officer of 18 years standing having to deal with people and informers and to be seen as an outcast when he is supposed to be a holder of the law. He therefore submitted that the plaintiff should be awarded damages with costs.

The issue that remains to be determined by this court therefore is whether the plaintiff suffered any prejudice due to such error on part of the defendants and whether the defendants are liable to compensate the plaintiff for the prejudice suffered.

The legal position In law, “Tout fait quelconque de l’homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé, à le réparer.” – Article 1382 of the Code Civil Mauricien (CCM).

And Article 1383 CCM provides that “Chacun est responsable du dommage qu’il a causé non seulement par son fait, mais encore par sa négligence ou par son imprudence.”

At note 49, Code Civil Annoté, article 1382-1383, we can read as follows: “La règle générale est que des dommages-intérêts ne peuvent être accordés, que s’il est possible de relever une faute à l’encontre du défendeur; mais que, dès lors qu’il y a faute, même faute légère, cette faute, peut en principe, permettre au juge, d’accueillir la demande en dommages-intérêts dont il est saisi.”

In the case of Couldip Basanta Lallah v Le Mauricien Ltd. and Ors [2005 SCJ 42], the court laid down the guiding principles in determining whether an article is prejudicial or not and it goes along the following lines, which I have taken the liberty to quote extensively:

“I shall refer to J. R. Dayal v G. Ahnee and Ors [2002 SCJ 303] where it was stated that “in such a situation like the present one which concerns the publication of a newspaper article, it is natural and proper to look for the meaning conveyed to the readers by considering the publication as a whole and for that purpose including its headline or title. It would be contrary to the law of libel for a plaintiff to sever, and rely on any isolated defamatory passage in an article (Charleston v News Group Newspapers [1995 2 AER 313].”

As regards the meaning to be ascribed to the article, the test, as pointed out earlier, is what the Court considers an ordinary reasonable reader makes of it and not what the author of the article thinks. This can be gathered from Slim v Daily Telegraph Ltd. [1968 1 AER 504] where it was held that “…where, as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing one of those meanings and some readers will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear.” [emphasis added]”

4 It is also trite law that fair comment on a matter of public interest is a defence in a defamation case provided that the comments were made in good faith and based on facts which are true and which must be pleaded. It must be noted that, in the present actions, it is only in the case entered by IFS that a belated averment of the “faits justifications” had been averred by the defence. Furthermore, as was held in Chong Leung v Selvon and Anor [1978 MR 81] a plea of fair comment would fail, if the article was prompted by personal spite against the plaintiff.

[…]

Finally, although section 12 of the Constitution protects the right to freedom of expression, the same section provides a limitation to that freedom which in a democratic society is reasonably justifiable especially for the protection of the reputations, rights and freedoms of others. So long as the publication is nothing but fair comments on a matter of public interest and based on true facts, the right to freedom of expression will always be upheld by a court of law. It is only when the publication had been made in bad faith, which is always presumed in a defamation case (vide Lesage v Mason [1976 MR 172], that the author would face sanctions. Freedom of expression is a limited right protected by the Constitution and it has also as one of its counterparts the right to privacy, to one’s honour and reputation which is also protected by the Constitution. It is recognized that the interference of the right to freedom of expression is in pursuant of the legitimate aim of “the protection of the reputation or rights of others” and this interference has been recognized to be necessary in a democratic country [vide Hertel v Switzerland ECHR Judgment of 25 August 1998, Steel and Anor v The United Kingdom ECHR Judgment of 15 February 2005 ]. The European Court of Human Rights held on numerous occasions that “even the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information” [Bladet Tromso and Stensaas v Norway (no. 21980/03) 1999 Judgment].

As regards the safeguard afforded by Article 10 of the Convention to journalists, I shall quote an extract from Steel and Anor v The United Kingdom (supra): “The safeguard in relation to reporting on issues of general interest is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the ethics of journalism and the same principle must apply to others who engage in public debate.” [emphasis added]. The principles applicable before the European Court of Human Rights find echo in the defence of fair comment on a matter of public interest based on facts which are true (faits justificatifs) and which must be made in good faith as applied before our jurisdiction.”

Analysis In light of the above principles and after having gone through the said article which was produced in court, I find that by publishing the plaintiff’s photograph and identifying him as the said Desire Azie in the article, the defendants have indeed portrayed the plaintiff as being the said Desire Azie to the public in general and to the ordinary reasonable reader. I find that an ordinary reasonable reader, when reading the said article, would think that the man in the photograph is Desire Azie, who has been described in the article as being an accomplice of drug dealers and that the said ordinary reasonable reader would think that the plaintiff is involved in the drug business. I am therefore satisfied that the publication of plaintiff’s photograph in the given circumstances caused harm to his reputation for which the defendants are liable.

As regards the quantum of the damages, I have duly considered the testimony of the plaintiff in order to determine a fair and reasonable amount that would meet the ends of justice in the given circumstances. The plaintiff explained in court that he felt deeply affected by such publication despite the fact that he had the support of his family and that of his superior at work during those times. He explained that after he was portrayed as a drug dealer in the papers, members of the general public, who were not familiar with him, would cast a different eye on him and say unpleasant things on him. He stated that although his name was not mentioned in the article, he felt helpless against the attitude of such persons since the publication of his photograph in the papers was tantamount to making a statement on him. He felt humiliated. He also noted that some of his colleagues would not talk to him and would be distant whilst others would make fun of him when referring to the issue. He further explained that, as a plain clothes police officer, he had many informers and he felt that they did not trust him anymore and would not collaborate with him. As far as his family is concerned, he stated that his children had to endure queries from other children at school about the incident and he had to make them understand that the article was erroneous; some people would also query his wife about his situation and it was embarrassing for them. He explained that overall, he was psychologically disturbed and very much affected by the whole blunder made by the defendants.

In cross examination he conceded that he did not contact any of the defendants for them to mend their error following the said publication. He stated that the defendants ought to have verified the information before publishing his photograph in the newspapers. In any event, none of the defendants contacted him for any amicable solution after they were served with a copy of

6 the present plaint. He clarified that even if the defendants were agreeable, to date, to publish an apology in their newspaper and set the records straight to restore his honor and his dignity, this would serve no purpose, as much time has lapsed since the incident and much harm has already been done to him. He emphasized that he went through stressful moments. He maintained that by publishing his photograph in the papers, he was portrayed as a drug trafficker to the public by the defendants and that he suffered prejudice as explained above. It is of note that, the evidence of the plaintiff to the effect that he was psychologically disturbed and affected by the incident has remained unrebutted in court.

Taking the evidence of the plaintiff as a whole, I find that there is nothing on record to make me doubt the version of the plaintiff. I find that he deposed in a concise and consistent manner in court and that he stood the test of cross examination without waver. I find that his version may safely be relied upon. The above being said, I also find that the plaintiff has however not satisfactorily established before this court that he was significantly prejudiced, thus warranting an award in a significant amount as damages from this court. I thus find that the sum claimed in the plaint is excessive and grossly exaggerated. This is in fact conceded by counsel for the plaintiff in his submissions. Bearing in mind the particular circumstances of the present case therefore, I find that a sum of Rs. 50,000 as damages would be fair and reasonable and would meet the ends of justice in the present case.

Conclusion For all the reasons given above, I order the defendants jointly and in solido to pay to the plaintiff the sum of Rs. 50,000 as damages with costs.

I.Dookhy-Rambarun (Mrs) Magistrate, Intermediate Court 30 January 2020