Blog: L’Express misinterprets defamation law relating to government institutions to protect Paul Bérenger

Through its journalist Iqbal Kalla, L’Express’s attempt to defend Paul Bérenger’s alleged diffusion of false news and criminal defamation against PM Ramgoolam, presently under police investigation, through misinterpretation of the law is unacceptable. If a government institution is the aggrieved party, contrary to what l’Express is trying to convey, the law of defamation is not excluded although the institution (or organisation) « has to show that a defamatory article in a newspaper refers to it as such, not just to individuals associated with it ».

Referring to just one sentence in the House of Lords judgement delivered in Derbyshire County Council v Times Newspapers Ltd [1993], namely that « It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism », Iqbal Kalla is taking an extremely narrow and misleading view of the judgement which runs in tens of pages, although it may have been in favour of The Times Newspapers only in so far as the Derbyshire CC is concerned. (Ref. « Tous pourris? », l’Express 9 September 2011).

The Derbyshire case concerns publications questioning « the propriety of certain investments made by the council of moneys in its superannuation fund, with Mr Bookbinder as the prime mover, in three deals with Mr Oyston or companies controlled by him ». The judgement made clear that « Following the publication actions of damages for libel were brought against the publishers of "The Sunday Times," its editor and the two journalists who wrote the articles, by Derbyshire County Council, Mr Bookbinder and Mr Oyston. Mr Oyston's action was settled by an apology and payment of damages and costs. »

The judgement also said that « the English law of defamation strikes a balance between the rights of protection for reputation and of freedom of expression. Thus, a local authority has to show that a defamatory article in a newspaper refers to it as such, not just to individuals associated with it »; that « The defence of fair comment gives a wide protection to the newspaper »; that « A local authority should not be deprived of the right to bring an action for libel because of the possibility of its being able to prosecute for criminal libel », so on and so forth.

However, it is conceded that given the tremendous powers wielded by central and local government institutions, they should expect greater scrutiny and greater criticisms both by the press and individuals. But Mr Kalla has taken the Derbyshire CC judgement out of context and tried to connect it with the allegations made by Opposition Leader Paul Bérenger against the Prime Minister Dr Navin Ramgoolam personally linking the latter with the scandal of the government purchase of the MedPoint disused clinic at an inflated price of Rs145m (from Rs75m) presently under investigation by the Independent Commission Against Corruption (ICAC) which has already led to provisional corruption charges being lodged against former MSM Health Minister Maya Hanoomanjee and other Civil Servants. Paul Bérenger was also forced by ICAC to reveal the names of those who allegedly gave him the damning information against Ramgoolam, as Iqbal Kalla rightly points out. As leader of the opposition, Paul Bérenger’s job is partly to criticise the government and present an alternative. But in the MedPoint case, which he called the « scandal of the century », Paul Bérenger formulated specific hearsay accusations against PM Ramgoolam who, in his personal capacity, referred the matter to the Police for « diffusing false news » and « criminal defamation ». The government (as an institution) did not complain to the Police. But the individual Ramgoolam did, and rightly so.