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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
WS NO 1356 OF 2012
VITIS INDUSTRIES LIMITED
Plaintiff
V
PACIFIC STAR LIMITED, TRADING AS "THE NATIONAL"
First Defendant
THOMAS HUKAHU, REPORTER, THE NATIONAL
Second Defendant
ANDY NG, PUBLISHER, THE NATIONAL
Third Defendant
Waigani: Cannings J
2014: 15, 16, 29 October
DEFAMATION – whether an article published in a newspaper contained defamatory imputations of the plaintiff – defences of fair comment and qualified protection.
The defendants published in their newspaper an article headed "Coffee Punch not healthy, says researcher". The plaintiff claimed that the subject of the article was a product called "Coffee Punch", which it produced, and that the article carried the imputations that its product was illegal, a health hazard and dangerous and therefore, it being well known that the plaintiff was the producer of that product, that the plaintiff was producing and selling an illegal, unhealthy and dangerous product. The plaintiff claimed that such imputations were defamatory. The plaintiff commenced proceedings against the defendants, claiming damages for defamation. The defendants denied liability on the ground that the article was not defamatory of the plaintiff, but if it was, its publication was lawful by virtue of the defences under the Defamation Act of public interest (Section 8) and qualified protection (Section 11).
Held:
(1) The elements of a cause of action in defamation are: (a) the defendant made a defamatory imputation in relation to the plaintiff, (b) the defendant published it and (c) the publication was unlawful in that it was not protected, justified or excused by law.
(2) The question of whether a statement contains a defamatory imputation is to be determined objectively according to the standards and reactions of a reasonable person.
(3) A defamatory imputation may be expressed directly or by insinuation or irony.
(4) Though at first glance the subject of the article might appear to be the plaintiff's product Coffee Punch, the subject was actually, more broadly, the dangers of illegal home brew alcohol consumption by youths. The "coffee punch" referred to in the article was reasonably to be regarded as a type of illegal home brew, and not the plaintiff's product bearing that name; a conclusion reinforced by the fact that no mention was made of the plaintiff or that the drink referred to was being legally manufactured and available for retail sale.
(5) As the drink referred to in the article was not the plaintiff's product, the article was not defamatory of the plaintiff. The plaintiff's case failed and it was unnecessary to consider the defences raised by the defendants, and the question of damages did not arise.
(6) The proceedings were wholly dismissed and costs awarded to the defendants.
Cases cited
The following cases are cited in the judgment:
Boyd v Mirror Newspapers [1980] 2 NSWLR 449
Hutton v Jones [1909] UKLawRpAC 57; [1910] AC 20
Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16
TRIAL
This was a trial on liability and assessment of damages for defamation.
Counsel
M Saroa, for the plaintiff
B Frizzell, for the defendants
29th October, 2014
1. CANNINGS J: The plaintiff, Vitis Industries Limited, is seeking damages for defamation arising out of publication of an article in The National newspaper. The article was headed "Coffee Punch not healthy, says researcher". It was published in the Monday 31 May 2010 edition of The National.
2. The plaintiff claims that the subject of the article is an alcoholic beverage it lawfully produces and sells, called "Coffee Punch". The plaintiff claims that the article carried the imputations that the product was illegal, a health hazard and dangerous as its alcohol content was unknown and therefore, it being well known that the plaintiff is the producer of that product, that the plaintiff was producing and selling an illegal, unhealthy and dangerous product. The plaintiff claims that such imputations were likely to, and did in fact, injure its reputation and its business and were defamatory.
3. The plaintiff commenced proceedings against three defendants. The first defendant, Pacific Star Ltd, is the company that trades as "The National". The second defendant, Thomas Hukahu, is the journalist whose by-line was attached to the article. The third defendant, Andy Ng, is the publisher of the newspaper. The defendants deny liability. They say the article was not defamatory of the plaintiff but, if it was, its publication was lawful by virtue of the defences under the Defamation Act of public interest (Section 8) and qualified protection (Section 11).
ISSUES
4. The elements of a cause of action in defamation are: (a) the defendant made a defamatory imputation in relation to the plaintiff, (b) the defendant published it and (c) the publication was unlawful in that it was not protected, justified or excused by law (Defamation Act, Sections 5, 24; Theresa Joan Baker v Lae Printing Pty Ltd [1979] PNGLR 16). Here, it is agreed that the article was published, so the primary issues are whether the article was defamatory of the plaintiff and, if it was, whether its publication was unlawful. If both issues are decided in favour of the plaintiff, an assessment of damages will be made.
WAS THE ARTICLE DEFAMATORY OF THE PLAINTIFF?
5. The heading and by-line stated:
Coffee Punch not healthy, says researcher
BY THOMAS HUKAHU
6. The article stated:
PAPUA New Guinean youths have gone into moon-shining a new drink for which its alcohol content is unknown and a health hazard to consumers.
Health Department researcher Norma Kutson, who researched the different types of alcohol consumed by youths said the brewing process of the so-called "coffee punch was very simple and took a relatively short time to brew.
Kutson was one of the participants at a two-day workshop on alcohol-related harm reduction held in Port Moresby's Lamana Hotel last week.
Other illegal home-brewed alcohols, which are consumed by youths, include bucket and steam.
The alcohol contents of such drinks are also unknown.
The bucket involves fermenting sugar in a bucket or container for about three days.
In bucket, the alcohol from the fermentation as well as the other stuff, including excess yeast, is drunk without any separation process.
It is often called soup because the drink looks like an untidy concoction of substances.
Steam involved a concoction of fruits to provide the sugar and fermented in a sealed container.
The products and remnants from fermentation are distilled to hopefully separate the alcohol from other products and remnants of substances that were initially put into the container.
A tube is usually connected from the chamber where the mixture is to a different container in which the alcohol distillate is connected.
The process can take one to two days.
An attempt to separate alcohol from the other substances is made but how well that is made is unknown.
7. Ms Saroa, for the plaintiff, submitted that the article was critical of the product Coffee Punch and therefore defamatory of the plaintiff. Reliance was placed on the evidence of the directors of the plaintiff, Vikki Mossine and Sergey Mossine, to assert that it was well known that the plaintiff was the manufacturer of the alcoholic product Coffee Punch and that it was a popular product due to its unique taste and its low and reasonable retail price. Ms Saroa submitted that the article insinuated that:
8. It was submitted, based on the evidence of Mr Mossine, that publication of the article had led to a downturn in sales of Coffee Punch and that the plaintiff had been the subject of an increased number of investigations by government agencies which were suspicious of the health effects of the product, due to the article.
9. In testing those submissions the court must have regard to Section 2 (definition of defamatory matter) of the Defamation Act, which states:
(1) An imputation concerning a person, or a member of his family, whether living or dead, by which—
(a) the reputation of that person is likely to be injured; or
(b) he is likely to be injured in his profession or trade; or
(c) other persons are likely to be induced to shun, avoid, ridicule or despise him,
is a defamatory imputation.
(2) An imputation may be expressed directly or by insinuation or irony.
(3) The question, whether any matter is or is not defamatory or is or is not capable of bearing a defamatory meaning, is a question of law.
10. The question of whether a statement contains a defamatory imputation is to be determined objectively according to the standards and reactions of a reasonable person. It is irrelevant whether the publisher of the statement intended it to be defamatory or to do any harm to the plaintiff's reputation (Boyd v Mirror Newspapers [1980] 2 NSWLR 449; Hutton v Jones [1909] UKLawRpAC 57; [1910] AC 20).
11. I accept the plaintiff's evidence about public knowledge of the product Coffee Punch and find as a fact that it is well known that it is a locally manufactured alcoholic beverage and that it is reasonably priced and that it is a popular drink. However, the critical question is whether the product Coffee Punch is the subject of the article.
12. I consider that the use of the capital P in the headline "Coffee Punch not healthy, says researcher" creates the impression, at first glance, that the subject of the article might be the plaintiff's product Coffee Punch. However once the article is read, after a few paragraphs it becomes apparent that its subject is actually, more broadly, the dangers of illegal home brew alcohol consumption by youths.
13. The words "coffee punch" appear only once in the text of the article: in paragraph 2, where, significantly, a lower-case "c" and "p" are used. The only other reference (which is indirect and inferential) either to the lower-case coffee punch or to the upper-case Coffee Punch is in paragraph 4, which states: "Other illegal home-brewed alcohols, which are consumed by youths, include bucket and steam". The use of the word "Other" at the beginning of paragraph 4 implies that the coffee punch referred to in paragraph 2, and indeed the Coffee Punch referred to in the headline, is a form of illegal home-brewed alcohol.
14. The opening paragraph uses the verb "moon-shining" to describe the conduct of Papua New Guinean youths in relation to "a new drink for which its alcohol content is unknown and a health hazard to consumers". The Oxford Dictionary definition of the word "moonshine" shows that it is a colloquialism of chiefly North American origin, referring to 'an illicitly distilled or smuggled alcoholic liquor', and that a "moonshiner" is an illicit distiller or smuggler of such a product (The Australian Concise Oxford Dictionary © 1997 Oxford University Press). The verb "moon-shining" connotes that the subject of the article is illegal and illicit home-brew.
15. I therefore uphold the submissions of Mr Frizzell, for the defendants, that a reasonable person reading the article would form the view that the term "coffee punch" was being used to describe a form of illegal home brew, in the same category as "bucket" and "steam", and not the plaintiff's product, "Coffee Punch", bearing that name. This conclusion is reinforced by the fact that no mention is made of the plaintiff and no claim is made that the drink referred to is being legally and locally manufactured and available for retail sale.
16. The author of the article, Thomas Hukahu, gave evidence at the trial that his understanding of the term "coffee punch" was that it was well known, worldwide, that this was another term for, and another form of, illegal homebrew. He testified that it was not his intention in writing the article to refer to the plaintiff's product. This evidence, while not conclusive of the question of whether to a reasonable reader the subject of the article was the plaintiff's product, further reinforces the conclusion that the answer to that question is no.
17. I conclude that:
CONCLUSION
18. The first element of defamation has not been proven. The plaintiff's case fails. This means it is unnecessary to consider the defences raised by the defendants, and the question of damages does not arise. The proceedings will be wholly dismissed and costs will follow the event.
ORDER
(1) The proceedings are wholly dismissed.
(2) The plaintiff shall pay the defendants' costs of the proceedings on a party-party basis, to be taxed if not agreed.
(3) Time for entry of this order is abridged to the date of settlement by the Registrar which shall take place forthwith.
Orders accordingly.
______________________________________________________
Nelson Lawyers: Lawyers for the Plaintiffs
Warner Shand Lawyers: Lawyers for the Defendants
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