Edwards v Tapueluelu [2018] TOSC 21; [2018] Tonga LR 176; Civil Case 25 of 2012 (6 June 2018)

BETWEEN: WILLIAM CLIVE EDWARDS

- Appellant

AND: LAUCALA POHIVA TAPUELUELU
MATENI TAPUELUELU
SAMUELA ‘AKILISI POHIVA
KELE’A NEWSPAPER

- Respondents

To: Mr. W C Edwards Snr in person
Mr. L Niu SC for the respondents

Date of Hearing: 17 May 2018
Date of Ruling: 6 June 2018

Ruling

The issues

[1] Mr. Edwards brought an action in the Magistrate’s Court for damages alleging that he had been defamed by the respondents in an article published in the Kele’a newspaper on 9 January 2012. In a ruling of 29 May 2012 the Magistrate dismissed the claim. The Magistrate held that Mr. Edwards was not defamed and that in any event the respondents had a defence to the claim of qualified privilege under s. 10 of the Defamation Act. Mr Edwards appeals from the Magistrate’s ruling.

[2] Mr. Niu, who appeared for the respondents on the appeal but not in the Magistrate’s Court, concedes that the article defamed Mr. Edwards. He also accepts that the respondents cannot rely on the defences of truth (s. 14 Defamation Act) or fair comment (s. 12 Defamation Act).

[3] The issue is whether the Magistrate was correct to find that the respondents had a defence of qualified privilege. If not, the appeal must be allowed and I will have to consider what other orders should be made.

The parties and the article

[4] Mr. Edwards is a prominent lawyer and has been a Minister in Government.

[5] The first respondent was the publisher of the Kele’a newspaper. The second respondent was the editor of the Kele’a. The third respondent was a People’s Representative, the founder of the Kele’a and the author of the article that is the subject of this appeal.

[6] The article was published in the Kele’a on 9 January 2012 under a headline that reads:

The Minister of Justice has become a hiding place for some law breakers.

[7] The sting of the article was that Mr. Edwards was unfit to hold office as a Minister because he sheltered criminals and was a law breaker himself.

[8] The article was lengthy and spread over more than one page with sub-headlines for a range of topics all concerned with the primary avowal that Mr. Edwards was unfit to be a Minister. I will set out in full below the material parts of the article that include the defamatory imputations that Mr. Edwards objects to.

[9] At page 5 of the Kele’a was the following:

With respect, I wish to submit recommendations which would assist with the administration of the new Government. The reasons for recommendations are based on the right which people have, to know about the backgrounds of those whom they elected to govern and make decisions for them.

1. In 1997, when Clive Edwards was Minister of Justice he did act unlawfully and unconstitutionally contrary to section 109 of the Constitution, and is breached to date, no legal action has been done to free him and others.

After frequently raising the issue of the frequent breach of this section, the Government has not taken any action, during the time Clive Edwards was Minister of Police. It reached a point, where I wrote a Question Paper to the Lands Minister, Lord Fakafanua (Question Paper Number 12, 1997) with the following questions.

1. Who gave the Minister of Police (Clive Edwards) the permission to continue filling the Fanga’uta beach frontage located at Halaleva, while there is a Cabinet decision prohibiting the continuation of filling the said areas?

2. If you were the one who permitted him, what law gives you the power to permit the Police Minister to continue filling the said beach frontage at Fanga’uta?

3. Have amendments been made to Clause 109 of the Constitution as opposed to the unlawful acts exercised on the areas prohibited by law?

4. Are the areas prohibited by Clause 109 still leased out despite the Cabinet decision banning such action?

Honorable Minister please note, that there were people who had started building and filling the prohibited areas, but have stopped due to the Cabinet decision. Not only that but Clause 109 of the Constitution is still in effect which prohibits any erection or building on the land.

Respectfully

Signed S.’Akilisi Pohiva

(MP 1, Tongatapu)

The Lands and Survey Minister’s reply to ‘Akilisi Pohiva’s Question Paper.

S.’ Akilisi

Member of Parliament 1 of the People of Tongatapu

Parliament of Tonga

Dear Sir,

I give my reply to your Question Paper Number 12 of 1992.

Land fill has not been permitted.

Respectfully,

Signed Hon. Fakafanua

(Minister of Lands, Survey and Natural Resources)

Due to the Minister breaking the law, it encouraged others to continue breaking the law and the breach of Clause 109 of the Constitution. I had frequently reminded that a Bill is in effect to amend Clause 109 for the purpose of legalizing the actions of those who have built on the areas prohibited by Clause 109, which was delayed so work could be done. When Clive became Police Minister, I frequently raised this issue in Parliament so actions would be done in relation to Clause 109 and as of today no action has been taken. You should take note that there is a Cabinet decision that prohibits filling and building on the area, pending amendment of Clause 109. However, the Minister’s personal needs were more important to him than the rule of law. And that his breach of the law has become a custom which others who have buildings at Fanga’uta have followed. Clive Edwards’ residence being situated at Fanga’uta is unlawful and continues to be to this day.

[10] At page 10, the following appeared in the Kele’a:

Police and Ming Seng Tsay

In 1993 at the time Clive was Minister of Police; the Investigation Division (CID) of the Ministry of Police entered Ming Chen Tsay’s residence and found goods belonging to the Government as shown below; 3 Tongan Protected Passports and others. These are passport numbers 000100, number 102857 and number 695209. A blank Protected Passport was also found (yet to be filled). Other goods excluding the above mentioned were also found, which included goods for Immigration as mentioned below.

1) Stamp of the Immigration Department (Immigration Control of the Government of Tonga)

2) Stamp of the Court of Tonga

3) 2 Stamps of the Civil Aviation Department (Departure) and (Arrival) to Tonga.

4) Stamps of the Civil Aviation Departments of Fiji and Samoa.

All of the goods appeared on the Search Warrant of the Investigation Unit (CID) and was submitted to the Minister of Police, Clive Edwards. The question is, did the Police conduct their investigation with due diligence regarding the information disclosed in the Search Warrant of the Police Ministry in relation to the Government goods found at Ming Chen Tsay’s residence. Publication was repeatedly done by Kele’a as well as questioning the actions that were carried out regarding goods of the Government that were unlawfully kept at Tsay’s residence.

However, it appeared in the Chronicles of January 1998 that the Minister of Police gave orders to discontinue any legal action concerning the passports. It raises a question, how can an order for discontinuance be made if Ming Cheng Tsay’s was charged with a criminal offence? It is important for me to state that Clive Edwards acted for Ming Chen Tsay in some of his court cases in the past. In the records of the Ministry of Finance, the Inland Revenue Department issued an order that Tsay should pay one million as debt owed to the Government; Clive Edwards represented Ming Chen Tsay.

It is significant that this information be published as the general public has a right to know the background of a person that they have elected to become a Cabinet Minister for the Government of Tonga. I will continue in the next publication.

[11] I am satisfied that the article was factually incorrect in a number of respects. Mr. Pohiva and Mr. Tapueluelu accepted that this was so. What follows is an extract from the transcript of the cross-examination of Mr. Pohiva highlighting errors. There is a very similar extract in the transcript from the cross-examination of Mr. Tapueluelu.

Clive: The focus of your article was that during the time that Clive Edwards was the Minister of Police in 1993, these things happened but do you admit that he was not the Minister of Police?
Pohiva: Yes

Clive: Why did you malign me for?

Pohiva: It is possible that it was wrong, it is clear that this often happens in Newspapers.

Clive: You have just been caught lying.

Pohiva: Chairman, mistakes occurring within newspapers is very prevalent, it can happen. The important thing is to show it was wrong. What I believed in was that the substance of the article. I believe it was all true but what appeared above was wrong.

Chairman: The year 1993 is wrong, it is not 1993, he was not the Minister then?

Pohiva: Yes, he was not the Minister at that time.

Chairman: Is it wrong to say that the search warrant was submitted to him?

Pohiva: That was a reference to the Minister at that time.

Chairman: On the face of the article whilst he was Minister of Police, I am only trying to clarify this and you can carry on. The year 1993 is wrong but the year 1996 is correct?

Pohiva: Yes.

Chairman: It is wrong because he was not the Minister at that time.

Pohiva: Yes.

Chairman: It is wrong that the search warrant was submitted to him.

Pohiva: Yes

Chairman: It is wrong to say that he handled court cases for Tsay?

Pohiva: Yes but what I meant was 2005.

Clive: My question is which Court cases were you referring to?

Pohiva: Chairman, I have already answered that question earlier.

Chairman: It was wrong because he did not conduct any court case for Tsay.

Pohiva: I have already answered that I did not have any proof about this. It was only my belief on explanations that was given to me. I based those explanation on the information I received alleging that he was representing Tsay.

Clive: Are you calling that person as a witness, because you are saying you are basing your explanation on the information you received. Will you call that person?

Pohiva: Chairman, leave that question for me to decide. My reason was about those things that were obtained. It is true that Clive was not the Minister in 93 but I was referring to the person who was Minister at the time and it was not Clive.

Chairman: Akilisi, please can you clarify this, is it the Minister in 93 that you are referring to in your article and it is not the plaintiff in this case?

Pohiva: Yes, because Clive’s name does not appear in anything in 93.

[12] I am satisfied that the article was incorrect in the following material respects:

Passport issue and Ming Chen Tsay

(a) That Mr. Edwards was the Minister of Police in 1993. He in fact became the Minister of Police in 1996.

(b) That Mr. Edwards had knowledge of the search of Ming Chen Tsay’s home. He was not the Minister of Police at the time.

(c) That the result of the search warrant was submitted to Mr. Edwards. He was not the Minister of Police at the time.

(d) That Mr. Edwards received a letter from Mr. Pohiva asking him what work had been done in relation to the search and the material seized. The letter was not produced into evidence and Mr. Edwards denied receiving it.

(e) That Mr. Edwards had ordered that no further work be done in relation to the passports found at Ming Chen Tsay’s home. He did not do so.

(f) That Mr. Edwards was Ming Chen Tsay’s lawyer in past cases before that courts. He never acted for Ming Chen Tsay in any court cases. He acted for him in relation to a revenue matter in 2005 which was 12 years after the search. Mr. Edwards was not then a Minister but a lawyer.

Land filling and the Constitution

(g) That Mr. Edwards was the Minister of Justice in 1997. He was the Minister of Police at that time.

(h) That Mr. Edwards had carried out filling work at Fanga’uta in or around 1997 and whilst he was a Minister that violated clause 109 of the Constitution. The work was done in 1986-1988 and not whilst Mr. Edwards was a Minister.

(i) That because Mr. Edwards had broken the law others had been encouraged to violate the Constitution. There was no evidence of any instances where this had occurred.

[13] After the respondents were served with Mr. Edwards’ claim in the Magistrate’s Court they published in the Kele’a on 30 January 2012 what were described as corrections. Mr. Niu provided me with translations of those corrections after the hearing which I set out below as they were provided.

[14] In relation to the passport issue the correction was to replace the words:

In 1993, whilst Clive Edwards was Minister of Police the Investigation Branch (CID) of the Police Department entered the dwellinghouse of Ming Sang Tsay

with

In 1998, whilst Clive Edwards was Minister of Police a statement was again published relating to the entry of the Investigation Brach of CID of the Police Department into the dwellinghouse of Ming Sang Tsay.

[15] In relation to the land filling the correction was to replace the words:

In 1997, whilst Clive Edwards was Minister of Justice he committed an unlawful and unconstitutional act which breached clause 109 of the constitution

with

In 1997, whilst Clive Edwards was Minister of Police he committed an unlawful and unconstitutional act which breached clause 109 of the constitution.

The Magistrate’s ruling

[16] There are errors of law in the Magistrate’s ruling to which I should refer. In doing so it is not my intention to reproach the Magistrate but to provide some guidance for later cases.

[17] The first matter relates to the burden of proof. At paragraph 40 of his ruling the Magistrate said that Mr. Edwards’ burden was to prove that all the material complained about was false. That was not correct. Mr. Edwards had to prove that a defamatory statement had been made, that the defamatory statement was made about him and that it had been published by the respondents (or any of them) to some person other than Mr. Edwards himself. He was not required to prove that the material was false.

[18] The next matter is the standard of proof. The Magistrate held that the standard of proof was higher than the ordinary civil standard of on the balance of probabilities. He found that Mr. Edwards had failed to establish that he had been defamed to this higher standard (see paragraphs 45, 47 and 62). He referred to Manu v Haidas & Editor of the Tonga Chronicle [1990] Tonga L.R 7, but that case concerned the particular circumstance where a defendant makes serious allegations against the plaintiff and relies on the defence of truth. In such a case a higher degree of ‘probability’ may be required to establish the defence reflecting the nature of the defamatory allegation. However, the standard of proof does not change and is the ordinary civil standard (Laucala Tapueluelu & ors v Vaipulu (Unreported, Supreme Court, AM 24 of 2012, 1 September 2015, Paulsen LCJ)).

[19] The next matter concerns the definition of defamation in s. 2 of the Defamation Act. It defines defamation of character as, inter alia, ‘any matter damaging the reputation of another’. The Magistrate held that Mr. Edwards’ claim failed because he had not proved that his character had been ‘ruined’. Mr. Edwards did not have to prove that his character was ruined. The law of defamation protects reputation and the article was clearly defamatory.

[20] Finally, I do not agree with the Magistrate’s approach to the defence of qualified privilege. Perhaps understandably, the Magistrate does not appear to have been aware of developments overseas relevant to this defence. In addition, the Magistrate held that the respondents were not actuated by malice in publishing the article but did not consider all of the evidence that had a bearing on that issue. He was primarily influenced by the subject matter of the article and conflated the questions of whether the publication of the defamatory material was privileged with the conceptually and analytically separate question whether the occasion was misused (Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385, 389). It is to the defence of qualified privilege that I now turn.

Qualified privilege

The words of section 10

[21] The starting point is s. 10 of the Defamation Act which provides:

No criminal or civil proceedings for defamation of character shall be maintainable in respect of any communication made bona fide by any person in discharge of a legal, moral or social duty or in reference to a matter in which he has an interest and the person to whom such communication is made has an interest in hearing it, unless it is proved that the person making such communication was actuated by anger, ill-will or other improper motive.

The parties’ positions

[22] Mr. Edwards relies upon Laucala Tapueluelu (supra) and submits that the defence of qualified privilege was not available to the respondents because the subject matter of the article was not of public interest, the inclusion in the article of defamatory imputations was not justifiable and the respondents had failed to take any responsible steps to ensure that the defamatory imputations were well-founded.

[23] Mr. Niu argues that the Magistrate was correct to uphold the defence and submits that Laucala Tapueluelu was wrongly decided because there is no requirement in s. 10 that the maker of a communication act responsibly before the defence will be available. The respondents’ position is that political discussion of public interest is protected by privilege subject only to an exception for malice.

Components of the defence in s. 10

[24] It is worth noting the particular components of the defence of qualified privilege as set out in s. 10. First, to attract privilege the communication must have been made bona fide. Bona fide translates as ‘in good faith’ but is used also to mean honestly, sincerely or genuinely. It is an adverb and modifies the phrase ‘in discharge of a legal, moral or social duty or by reference to a matter in which he has an interest’. The maker of the communication must act honestly for the purpose of discharging a duty or have an interest to make the communication. Next, the communication must be made to a person who has an interest in hearing it. Not only must the person claiming the privilege have a duty or interest in making the communication, the recipient of the communication must have a reciprocal interest in receiving it. Reciprocity is essential. Finally, the privilege will be lost if it is proved (the onus being on the plaintiff) that the person making the communication was actuated by anger, ill will or any ‘other improper motive’. This is often referred to as the malice exception.

[25] It has been held that s. 10 was intended to express the common law (Tu’i’onetoa v Pohiva [2001] Tonga LR 58, 62 at [17] (CA)). The common law privilege was born of the recognition that it not always right to presume malice from the publication of defamatory material. As the common law developed the privilege a unifying principle emerged ‘by which the most commonly occurring circumstances capable of amounting to such occasions could be recognised’ and protected (Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385, 393). This was the duty/interest test, reflected in s. 10, where one person has a legal, moral or social duty to make some communication to another person and that other person some corresponding interest to receive it (Adam v Ward [1917] AC 309 (HL)).

[26] The common law was slow to recognise the privilege other than when a publication was to a limited number of recipients – most often a publication to a single person. Publication to a wider audience than was reasonably sufficient was unprotected. Only in rare cases did the common law recognise an interest or duty to publish defamatory matter to the general public and the courts have been cautious about extending the privilege to cover publications by news media (Lange v Australian Broadcasting Corporation [1997] 189 CLR 532, 570).

Tu’i’onetoa

[27] In Tu’i’onetoa v Pohiva (supra) the Supreme Court recognised the availability of the defence in respect of a publication in a newspaper. The plaintiff sued the defendant for defamation arising out of an article published in the Kele’a that falsely alleged that the plaintiff had improperly altered a report of an audit of the finances of the Legislative Assembly. Ward CJ held that the defence of qualified privilege was available unless the defendant was actuated by malice and said at [56]:

The defendant is the first People’s Representative for Tongatapu. I accept that his election as a People’s Representative does impose a duty upon him to keep his electors informed of matters that may cause them genuine concern. Maladministration of Parliamentary funds must be a matter of sufficient import and I have no hesitation in finding that the electors in Tongatapu have a sufficient interest in receiving such information.

[28] There was an appeal in Tu’i’onetoa to the Court of Appeal but in relation to Ward CJ’s ruling the Court of Appeal was only asked to consider whether the Judge was correct that the question whether the defendant was actuated by malice was for the jury to decide. Neither Ward CJ nor the Court of Appeal considered developments in England, Australia and New Zealand concerning the availability of the defence in cases of political discussion to a wide audience. In each of those countries the courts had recognised at least the potential for qualified privilege to be claimed for communications in the course of political discussion to the public at large but had differed as to the definition of the controls governing the defence (Lange v Atkinson [2000] NZCA 95; [2000] 3 NZLR 385, 390).

Reynolds

[29] In England the House of Lords in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 recognised that qualified privilege could extend not just to political discussion but to general publication about a matter of substantial public concern. However, whether privilege existed in any case involved a merits based approach where the Court would consider a range of factors to determine if there was an appropriate duty/interest. The subsequent case law confirmed that the three key issues for the Court to consider were whether the subject matter of the publication was of sufficient public interest, whether it was reasonable to include the particular defamatory material complained of and whether the publisher had met standards of reasonable journalism or publication (Gatley on Libel and Slander, 12^th Ed at page 643).

[30] The concept of public interest is pliable but it is reasonably settled that it can include matters concerning the conduct of government and political life, elections and public administration. However, if a defendant chooses to make a specific and defamatory charge about a plaintiff the defence will not be available simply because it is presented against background material which is regarded as of public interest (Miller v Associated Newspapers Limited [2003] EWHC 2799 (QB)).

[31] In relation to the third component (standards of reasonable journalism or publication) Lord Nicholls noted in Reynolds that depending on the circumstances the factors (which are non-exhaustive) that the Court might take into account included the following

(a) The seriousness of the allegation. The more serious the allegation the more the public will be misinformed and an individual harmed if the allegation is untrue.

(b) The nature of the information and the extent to which the subject matter is of public concern.

(c) The source of the information. Some informants might have direct knowledge of events whereas others may have axes to grind or are being paid for their stories.

(d) The steps taken to verify the information.

(e) The status of the information. The allegation may already have been the subject of an investigation which commands respect.

(f) The urgency of the matter.

(g) Whether comment was sought from the plaintiff as he may have information others do not possess or have not disclosed.

(h) Whether the article contained the gist of the plaintiff’s side of the story.

(i) The tone of the article bearing in mind that a newspaper can call for an investigation. It need not adopt allegations as facts.

(j) The circumstances of the publication including timing.

[32] In its assessment of what constitutes responsible journalism the court will likely have to balance a number of factors sometimes pointing in different directions. It should not judge harshly with the benefit of hindsight. Prior decisions, particularly in other jurisdictions or concerning other news mediums than the one in question should be viewed with caution. Due regard should be paid to editorial discretion and professional appreciation of journalists (Gatley (supra) at page 652).

[33] Reynolds was applied in a number of cases in England at the highest level but has now been transposed into statutory form in s. 4 of the Defamation Act 2013.

Australia and New Zealand

[34] The courts in Australia and New Zealand took different approaches. In Australia the High Court held in Lange v Australian Broadcasting Corporation (supra) that whilst privilege should protect government and political discussion a further condition, over and above malice, was required to avoid abuse of the privilege. The condition settled upon was that the publication must be reasonable, which included the publisher taking reasonable steps to verify the information, having reasonable grounds for believing in the truth of the information and, unless it was impracticable or unnecessary, seeking and publishing a response from the subject of the publication (see Todd, Hawes and Cheer, The Law of Torts in New Zealand, 7^th Ed at page 936).

[35] In Lange v Atkinson (supra) the New Zealand Court of Appeal did not follow Reynolds or Lange (Aust) because of New Zealand’s particular legal, constitutional and social conditions. The Court recognised that the common law defence of qualified privilege could extend to political discussion to a wide audience but to attract privilege the communication must be made on a privileged occasion. What was a privileged occasion would depend on the circumstances and context of the publication.

[36] An important factor in the Court’s consideration was s. 19 of the Defamation Act (NZ) which prevented reliance upon qualified privilege if the defendant took improper advantage of (or misused) the occasion of publication. Section 19 was said to allow for flexibility and development in the law.

[37] The Court said that if a publisher is unable or unwilling to disclose any reasonable basis for asserting a genuine belief in truth it may be inferred that no such belief existed (at paragraph 43) and that it was useful when considering whether an occasion of qualified privilege has been misused to ask whether the defendant has exercised the degree of responsibility which the occasion required (at paragraph 46). The Court acknowledged that (at paragraph 48):

...to require the defendant to give such responsible consideration to the truth or falsity of the publication as is required by the nature of the allegation and the width of the intended dissemination, may in some circumstances come close to a need for the taking of reasonable care.

[38] Pertinently to the facts of the present case, the Court (at paragraph 49) said that what amounts to a reckless statement must depend significantly on what is said and to whom and by whom and:

A case at one end of the scale might be a grossly defamatory statement about a cabinet Minister, broadcast to the world. At the other end might be an uncomplimentary observation about a politician at a private meeting held under Chatham House rules...A greater degree of responsibility is therefore required in the first case than in the second, if recklessness is not to be inferred.

Returning to Tonga

[39] Laucala Tapueluelu (supra) was an appeal from the Magistrate’s Court against a finding that the appellants had defamed the respondent in an article in the Kele’a newspaper alleging that the respondent had misused his position in Government to allocate opportunities for roading contracts. One of the grounds of appeal was that the article was an occasion of qualified privilege. I found that developments in the common law should inform the law of Tonga in so far as those developments were consistent with the Defamation Act and the local conditions. I applied Reynolds, and cases that had followed it, and held that the appellants could not claim privilege as they had not taken reasonable steps to ensure that the defamatory imputations were accurate and fit for publication.

[40] Laucala Tapueluelu was discussed, apparently with approval, in Paulu & ors v Edwards & ors (Unreported, Supreme Court, AM 25 of 2013, 6 May 2016, Scott J) where a defence of qualified privilege was not available in respect of the publication of a defamatory letter in the Kele’a alleging that the then Prime Minister and Ministers were guilty of theft and embezzlement. Scott. J held that as the allegation was presented as a fact, for which no justification was attempted, the public had no interest in the publication of the letter and the occasion was not privileged.

The public interest in journalistic responsibility

[41] The starting point for the House of Lords’ consideration in Reynolds was freedom of expression which is fundamental to the proper functioning of a free democratic society. It enables the uninhibited flow of information and ideas and encourages public discourse on matters of public interest. It also allows the people, when electing their representatives to the Legislative Assembly, to make informed choices regarding the individuals standing for election and the policies they advance.

[42] But it was also recognised that personal reputation is an integral and important part of the dignity of the individual and forms the basis of many decisions in a democratic society which are fundamental to its well-being. In Tonga, those decisions cover all aspects of people’s lives including such matters as whom to employ or work for, where to worship, whom to marry, whom to do business with and whom to vote for. Unfounded allegations published widely can damage one’s reputation forever.

[43] It is not the case that protection of reputation is a matter of importance only to the individual or those close to him/her. Protection of reputation is conducive to the public good. Attacks on personal reputation and truth not only ruin reputations but undermine political and social institutions.

[44] In a prescient speech delivered in 1906 (The Man with the Muck-Rake) Theodore Roosevelt warned of the risks of indiscriminate and untruthful assaults on the character of those in Government. He said:

Gross and reckless assaults on character whether on the stump or in newspaper, magazine, or book create a morbid and vicious public sentiment, and at the same time act as a profound deterrent to able men of normal sensitiveness and tend to prevent them from entering the public service at any price.

[45] Disputes like this one highlight the tension between freedom of expression and rights to protection of reputation. It has been said that when the public interest in uninhibited expression outweighs the need to protect personal reputation the occasion should be regarded as privileged. The role of the law is to strike the right balance between these competing interests. But how is the balance to be struck?

[46] The respondents would argue that the right balance can be found in the concept of malice. The majority in Reynolds recognised that the defence of malice is a dubious safeguard for the protection of reputation. Whilst the malice exception may be adequate protection of the individual in situations where only one or a few persons receive the defamatory communication it is unlikely to be suitable when the communication is made by the media to a mass audience. The reason is that the damage that can be done to an individual is so much greater, particularly in a computer age where what passes for news travels instantaneously in small bites and the readers of it are susceptible to distortion and manipulation.

[47] Furthermore, malice may be extremely difficult for a plaintiff to establish, particularly when it has traditionally been held that the defence was available even though the defendant was careless, or impulsive and even grossly unreasoning in publishing the defamatory material.

[48] The requirement in Reynolds that privilege will not attach unless the maker of a statement concerning a matter of public interest acts responsibly is an appropriate protection of the individual’s right to reputation without unduly curtailing free expression and is in the public good.

[49] This is reflected in what Lord Nicholls said in Bonnick v Morris [2002] UKPC 31 as follows:

Responsible journalism is the point at which a fair balance is held between freedom of expression on matters of public concern and the reputations of individuals. Maintenance of the standard is in the public interest and in the interests of those whose reputations are involved. It can be regarded as the price journalist pay in return for privilege.

The application of Reynolds in Tonga

[50] The divergent approaches the courts have taken to balance freedom of expression and personal reputation in this context are to a large degree policy decisions reflecting each jurisdiction’s particular social, political and legal circumstances.

[51] In Laucala Tapueluelu I adopted the English approach in Reynolds as it was developed in later cases. There are a number of reasons for this. First, I considered the Court should have regard to developments in the common law. Secondly, the approach promotes the public good and, for reasons I shall come to, is consistent with s. 10. Thirdly, the leading case was Tu’i’onetoa which did not refer to the recent developments overseas. Ward CJ’s approach as to the availability of the privilege was overly expansive in my view. Fourthly, in so far as there are divergent approaches in common law jurisdictions the Court should have primary regard to the common law of England (ss. 3 and 4 of the Civil Law Act). Finally, regardless of the divergent approaches taken in England, Australia and New Zealand each has to some degree recognised that communications made in respect of political discussion will be protected if they are reasonable or made responsibly. In Todd (supra) at paragraph 16.11 the Learned Authors conclude that despite the differences in emphasis in each jurisdiction the actual decisions arrived at in similar fact situations may not be markedly different.

[52] I was not presented with any arguments that the Reynolds approach was not suitable in Tonga due to its particular legal, political or social conditions (other than the terms of s. 10 itself).

[53] I have considered the reasons the Court of Appeal gave in Lange (NZ) for not following Reynold’s but most do not apply to Tonga. What is of note is that the Court of Appeal felt able to adopt an expansive approach to the availability of the defence because New Zealand had been spared the excesses of tabloid journalism. New Zealand enjoys high standards of journalism, newspapers are not closely associated with particular political parties and political positions generally find expression not in news pages but in opinion pages. In such circumstances the press can be expected to act responsibly.

[54] In Tonga the position is somewhat different. It is of course desirable, indeed essential, that in an emerging democracy the news media be able to freely communicate with the public on matters of government and politics, including matters relating to the conduct of individuals holding or seeking election to positions in Government. Freedom of expression should not be curtailed (whether by Government, the fear of litigation or public opinion) beyond what is necessary and proportionate in a democratic society. But society has no interest in receiving untruthful and defamatory information and will not be well served by news media that is driven primarily by commercial considerations, particular political agendas or that is indifferent to truth.

[55] It is the case that in Tonga some news and social media outlets are plainly aligned to particular politicians or political agendas. Some news and social media outlets have clear political perspectives and have been known to misreport official proceedings, dress up supposition as fact and make or publish ad hominem attacks on people holding different perspectives. This is a strong factor in favour of the adoption of the Reynolds approach.

The responsibility requirement and s. 10

[56] This takes me to the respondent’s contention that there is no responsibility requirement in s. 10. Section 10 sets out only the elements of the defence. The categories of case where qualified privilege can arise can never be catalogued, are not closed and the law constantly develops. Whilst there can be argument over the conceptual basis of the Reynolds privilege, it was not a radical departure from orthodoxy.

[57] The courts had previously recognised privilege in the context of newspapers publishing on matters of public interest (Purcell v Sowler [1877] UKLawRpCP 15; (1877) 2 C.P.D. 215 and Allbut v General Council of Medical Education and Registration [1889] UKLawRpKQB 125; (1889) 23 Q.B.D 400). Certainly Lord Nicholls and Lord Cooke in Reynolds considered that the privilege was developed within the traditional duty/interest test, which is the test contained in s. 10.

[58] Similarly, Lord Hoffman in Jameel (Mohammed) v Wall Street Journal Europe SPRL [2006] UKHL 44, 50 said:

The Reynolds defence was developed from the traditional form of privilege by a generalisation that in matters of public interest, there can be said to be a professional duty on the part of journalists to impart the information and an interest in the public receiving it. The House having made this generalisation, it should in my opinion be regarded as a proposition of law and not decided each time as a question of fact. If the publication is in the public interest, the duty and interest are taken to exist.

[59] Reynolds recognised a new variant of case but did so within the traditional duty/interest test. In defining the defence the Court did no more than recognise its limits consistent with its purpose. I therefore do not accept Mr. Niu’s submission that Laucala Tapueluelu added a condition to the defence of qualified privilege that cannot be accommodated within in s. 10.

The respondents’ conduct

[60] I am 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. In many instances the public will have an interest to know information that has a bearing on a Minister’s suitability to hold his/her position in Government.

[61] But in this case the defence of qualified privilege was not available to the respondents for two reasons. First, 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. In terms of s. 10 the respondents acted with improper motive.

Publication responsibility

[62] It is a serious matter to allege that a Minister shelters criminals or is a law breaker 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 circumstances of this case (grossly defamatory allegations against a Cabinet Minister) were noted by the Court of Appeal in Lange (NZ) as being at the extreme end of the scale where the highest degree of responsibility should be exercised if recklessness on the part of the maker is not to be inferred.

[63] The respondents did not advance any submissions before me that they exercised responsible standards of journalism in publishing the defamatory imputations.

[64] The most serious imputation against Mr. Edwards concerned Ming Chen Tsay and the steps Mr. Edwards was said to have taken to shelter him. The foundation for this accusation was that Mr. Edwards was the Minister of Police in 1993. This was presented as a fact. Mr. Pohiva and Mr. Tapueluelu both knew that Mr. Edwards was not the Minister of Police in 1993 and that he did not become the Minister of Police until 1996. They should also have known that the result of the search would not have been shown to him and that it was unlikely also that Mr. Edwards had ordered that no work be done following the search.

[65] The respondents had no reliable sources of information to support the defamatory imputation that Mr. Edwards was sheltering law breakers. It was not reasonable for the respondents to conclude that Mr. Edwards was in anyway involved in the search of Ming Chen Tsay’s home or in the decision to take no action in respect of it.

[66] Mr. Pohiva did say that he had written to Mr. Edwards about the matter in 1996 but got no reply. As I noted earlier the letter was not produced and Mr. Edwards denied receiving such a letter and there is no evidence that he did receive it.

[67] The respondents had no information either that Mr. Edwards had acted for Ming Chen Tsay in any court cases at any time whilst Mr. Edwards was a Minister. Mr. Pohiva had seen documents that Mr. Edwards had acted for Ming Chen Tsay in relation to the revenue issue but that was in 2005 well after the events in question. It was no basis for the imputation that Mr. Edwards was sheltering a criminal.

[68] The article did refer to a report in the Chronicle newspaper in 1998 which was said to have stated that there would be no further legal work carried out in relation to the passports. The Chronicle article was not produced nor was there any evidence that its content was correct or even reliable. There was no suggestion either that the article said anything about Mr. Edwards sheltering criminals or asserted that the decision to do no further work was ordered by Mr. Edwards or was the result of a relationship he had with Ming Chen Tsay.

[69] In relation to the land filling issue, Mr. Pohiva relied upon the letter from the Minister of Lands that was published in the Kele’a. The Minister’s letter says only that no land filling was permitted. The letter says nothing at all about Mr Edwards and whether he had done filling work or whether the work he had done was lawful.

[70] Mr. Pohiva does not appear to have made any other enquires about the matter. He did not go to Fanga’uta to inspect for himself what filling work had or was being done and by whom. Without making such an inspection it is difficult to see how he could assert in his letter to the Minister that the filling work was continuing.

[71] The allegation that Mr. Edwards had by his actions encouraged others to break the law was, as far as I can tell, entirely supposition.

[72] Mr. Tapueluelu appears to have exercised no editorial oversight and made no enquiries as to the accuracy of the article or the truth of the defamatory imputations that were contained in it. He relied entirely on Mr. Pohiva when authorising its publication.

[73] The explanations provided by Mr. Pohiva and Mr. Tapueluelu for the errors in the article were unsatisfactory. It is no justification when publishing such serious allegations that mistakes commonly occur in newspapers or that the errors were overlooked.

[74] It is no excuse either that Mr. Pohiva wrote one thing but says that meant to refer to something else. By way of example, whereas the article states ‘In 1993, while Clive was Minister of Police...’ Mr. Pohiva said he was referring to the Minister at the time and not Mr. Edwards. Whereas the article states ‘Clive Edwards was the lawyer of Ming Chen Tsay in some of his court cases in the past’ Mr. Pohiva said he meant that Mr. Edwards acted for Ming Chen Tsay in 2005.

[75] Both Mr. Pohiva and Mr. Tapueluelu gave evidence that the errors were corrected in the 30 January 2012 edition of the Kele’a. I have set out those corrections earlier. They are not corrections but the recasting of the article whilst maintaining its defamatory imputations. They did not acknowledge errors in the original article nor did they withdraw any of the defamatory imputations. A reader would most likely conclude that Mr. Pohiva and the Kele’a were standing by and restating the assertion that Mr. Edwards was unfit to be a Minister. That was in fact their intention. Both Mr. Pohiva and Mr. Tapueluelu maintained that the substance of the article was true.

[76] There was no urgency about the publication of the article preventing the respondents from taking greater care or making further enquires. The matters referred to had occurred years before the article was published.

[77] There could have been nothing to prevent the respondents from contacting Mr. Edwards and seeking his comments before publishing. Mr. Edwards should have had the opportunity to correct the errors upon which the defamatory imputations were based. He was not given that opportunity. The result was that the article contained serious errors and was unbalanced.

[78] The Magistrate’s conclusion that the defence of qualified privilege was available to the respondents was incorrect. Whilst the subject matter of the article was a matter of public concern the content of the article was largely false, gravely defamatory, inadequately sourced and researched, absent any explanation from Mr. Edwards and was not therefore information that the public had a right to know.

Misuse of privilege

[79] A person who publishes defamatory information knowing it to be false will be regarded as acting for an improper purpose. Lord Diplock said in Horrocks v Lowe [1975] AC 135 (HL) that a person who publishes untrue material recklessly without considering or caring if it is true or not is to be treated as if he knew it to be false (see also Lange (NZ) at 401).

[80] The Magistrate conflated the questions whether the article was published on an occasion of privilege on the one hand and whether the privilege was lost for improper motive on the other. The Court of Appeal in Lange (NZ) emphasised the need to maintain this distinction as a matter of first importance.

[81] The Magistrate held that the respondents were not motivated by malice. This was based on the evidence of Mr. Pohiva, who said that he was not motivated by malice or hatred towards Mr. Edwards, the subject matter and ‘spirit’ of the article and the Kele’a’s mission to watch the leaders of the country and inform the people. Whilst this Court will not lightly depart from the Magistrate’s findings of fact it may do so if the Magistrate has failed to consider relevant and material evidence that had a bearing on an issue.

[82] The Magistrate had to consider all the circumstance of the article’s publication in assessing the respondents’ state of mind but he did not do so. The circumstances the Magistrate failed to consider included the gravity of the allegations and the width of their intended dissemination, the acknowledged errors in the article, the number of the errors, that Mr. Pohiva and Mr Tapueluelu should have been aware of the errors, the lack of any reliable sources for the information published, the failure of the respondents to verify the information, the failure of the respondents to seek any comment from Mr. Edwards, the lack of any balance in the article and the fact that having had the errors drawn to their attention the respondents did not acknowledge them nor did they retract any of the defamatory imputations. He also failed to take into account that a substantial portion of the article concerned a matter personal to Mr, Pohiva and an attempt that Mr. Edwards was said to have made to prevent him representing Tonga at a meeting in India. The presence of animus against Mr. Edwards is reflected in Mr. Pohiva’s characterisation of this as a betrayal and evidence of Mr. Edwards’ dishonesty.

[83] Had the Magistrate had regard to these matters he could only have found, in my view, that the respondents were indifferent to the truth of the allegations against Mr. Edwards. They were therefore acting out of an improper motive in publishing the article and the defence of qualified privilege should have been rejected.

Damages

[84] The appeal will be allowed and I must consider what further orders to make. Under s. 80 of the Magistrate’s Court Act I may make any order that the Magistrate may have made. Mr. Niu suggested that I might refer the case back to the Magistrate to determine the amount of any damages. I do not intend to do that but I am also not satisfied that either party turned their mind to the quantum of damages if the appeal was allowed. It may be that with the passage of time Mr. Edwards will be satisfied with a ruling that vindicates his reputation.

[85] I will reserve leave for Mr. Edwards to apply for a further hearing if he wishes where Counsel can address me on the question of damages.

Some additional points

[86] It has not proved necessary to consider Mr. Edwards’ ground of appeal that the Magistrate was biased or whether the Magistrate was correct in his interpretation of clause 109 of the Constitution.

[87] Finally, in a memorandum filed after the hearing Mr. Niu asked that the Court consider articles concerning ‘wrong doings’ of Mr. Edwards in subsequent articles published in the Kele’a, including an article about a Mr. Wong. These are said to be relevant because Mr. Edwards had not objected to them, they formed a complete picture of what was intended by the publications and the Magistrate had considered them in making his decision. There is nothing in the Magistrate’s ruling concerning Mr. Wong or to suggest that took subsequent articles into account. There was no evidence called to establish the truth of any allegations made against Mr. Edwards in subsequent articles. In the absence of such evidence the articles are not relevant.

Result

[88] The appeal is allowed.

[89] The judgment of the Magistrate’s Court in favour of the respondents is set aside.

[90] The question of any damages payable to Mr. Edwards is reserved for further consideration. I reserve leave for Mr. Edwards to apply for a further hearing if he wishes to address the question of damages.

[91] Mr. Edwards is entitled to costs on this appeal which are to be fixed by the Registrar if not agreed.

O.G. Paulsen

NUKU’ALOFA 6 June 2018. LORD CHIEF JUSTICE