The Supreme Court has overturned a 2012 ruling by a magistrate’s court which found Kele’a newspaper did not defame prominent lawyer and former government minister Clive Edwards.
The ruling by Lord Chief Justice Paulsen opens the way for Edwards to apply for a hearing regarding damages against the newspaper and the three defendants – one of whom is Prime Minister ‘Akilisi Pōhiva.
Mr Edwards brought an action in the Magistrate’s Court in 2012 for damages alleging that he had been defamed by the respondents in an article published in the Kele’a newspaper on January 9 that year.
The article was published under a headline that read: ‘The Minister of Justice has become a hiding place for some law breakers.’
“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,’ Mr Justice Paulsen said.
In his action Edwards named Kele’a’s publisher, Laucala Pōhiva Tapueluelu, the newspaper’s editor, Māteni Tapueluielu, and the newspaper’s founder and author of the article, ‘Akilisi Pōhiva.
In a ruling of 29 May that year, the Magistrate dismissed the claim. The Magistrate held that Mr Edwards was not defamed and that the respondents, had a defence to the claim of qualified privilege under Section 10 of the Defamation Act. Mr Edwards appeals from the Magistrate’s ruling.
In his summary of the case, Mr Justice Paulsen said the Magistrate had not considered all the factors in the case and was wrong to declare that Kele’a was protected by qualified privilege.
“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 Pōhiva 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,” the Lord Chief Justice said.
“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.”
Mr Justice Paulsen provided evidence that Hon Pōhiva had admitted during cross examination that the article was full of errors.
He said it was desirable 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.
“But society has no interest in receiving untruthful and defamatory information and will not be well served by a news media that is driven primarily by commercial considerations, particular political agendas or that is indifferent to truth,” the judge said.
“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 attack people holding different perspectives.”
