1. This is an appeal from the judgment and decree of my learned brother Buckland, J. whereby he gave to the plaintiff Rs. 7,500 as damages in respect of an alleged libel published in the issue of the newspaper called, The Englishman on 7th August 1929. The suit was brought in respect of two publications alleged to be defamatory--one on 5th August and the other on 7th. The case as regards the former was a case both against The Englishman Limited, a company owning the newspaper and against one De Silva -- a reporter on the staff of the said newspaper who on 4th August had an interview with the plaintiff. It appears that, on 4th August, there was a paragraph in another newspaper to the effect that, as a result of certain strikes in cotton mills in Lancashire, certain Italian cotton manufacturers were taking stops to come over to Calcutta with a view to increase the export of their cotton goods from Italy into Calcutta and to dispose of those goods here; accordingly Mr. De Silva -the reporter of the Englishman--was asked by his superior officer to go to the plaintiff who at that time was the Royal Consul-General for Italy. It would seem that Mr. De Silva was given certain points by way of questions which might be asked upon the matter. He says that he copied those questions down in his note-book. On the morning of Sunday, 4th August, he went to the office of the Italian Consul-General and was taken into his waiting-room. It further appears that the plaintiff at that time was very inadequately equipped with knowledge of the English language and his method of speaking English has been described as broken English. It is the plaintiff's own case that his knowledge of the English language was at that time very defective and that he had real difficulty in con-ducting ordinary conversation in that language.
2. On this Sunday morning the reporter says that ha had a short interview with the plaintiff. It is common ground that certain names of places were mentioned and that the plaintiff wrote certain names correctly in De Silva's note book and there can be no doubt also that the plaintiff understood that ha was granting an interview for the purpose of publication. There is considerable difference between the parties as to what was actually said. As it is not material for the present purpose that I should endeavour to arrive at any conclusion as to the exact degree of truth between the statement of the plaintiff on the one hand and Da Silva's statement on the. other, I am content to say that the plaintiff's version is that ha told Da Silva that he knew nothing about this alleged arrival of Italian cotton manufacturers or the alleged probability of increasing their business in Calcutta.
3. The plaintiff says that he gave De Silva the names of some cotton manufacturers in Italy and the names of some of the principal firms in Calcutta; but that, in effect, he told De Silva that he knew nothing about the matter and that, if the mail of that day contained any information, ha would get a member of his office staff to communicate it to De Silva. De Silva, on the other hand, says that the plaintiff discussed to some small extent with him various matters which he afterwards wrote out for publication and which appeared in the paper of 5th August 1929. There is some reason for thinking that the plaintiff has exaggerated the shortness of the interview and that he is wrong in supposing that beyond the matters which I have mentioned he said nothing to the reporter. That arises from the fact that according to the plaintiff in the witness-box there was nothing in De Silva's note-book at the time when the plaintiff wrote down certain names therein. It appears to be reasonably certain that there were certain short-hand notes upon that page. However that may be, there is a long step between saying that the plaintiff has minimized the amount of information that he endeavoured to give and saying that the plaintiff, in fact, committed himself to everything that appeared in the issue of 5th August.
4. The interview having appeared in the newspaper on Monday 5th August, the plaintiff immediately took exception thereto by his letter of that date. He states that he read the interview with great surprise and that what has been written as his opinion is not correct. He says that he gave some names of important manufacturers in Italy and the names of some principal firms in Calcutta but that
any other comment attributed to me about the quality and the possibility of Italian goods is due to the fancy and not to the good faith of your reporter,
and the letter ends with a request for publication. The letter is addressed to the editor. I think it fair to say on this letter that it does not appear to me that the plaintiff at that time had made up his mind as to whether this alleged interview as published was libellous or not. His complaint was quite natural-- that opinions had been imputed to him which he did not express. The letter was dealt with on the same day by Mr. Mackie--the acting Editor of the newspaper. He writes back to say:
I regret the misunderstanding that seems 'to have arisen on your part. I have very closely cross-examined my reporter whom I have in the past found extremely reliable and he states most emphatically that your first words were 'Italy is a poor country and cannot compete with Lancashire.' I regret I do not see my way to publishing your letter, the concluding paragraph of which makes a serious and, in my opinion unsupported attack on the reporter of 'the Englishman.
5. Pausing here for a moment, I will observe that I doubt whether Mr. Mackie appreciated that the complaint of the plaintiff was that he had been libelled as distinct merely from a complaint that opinions which he did not hold had been published as his opinions. If Mr. Mackie had thought that the plaintiff regarded the interview as libellous, I certainly think that he would have been guilty of an error of judgment in refusing the request of the plaintiff for publication of his letter. The fact that this letter was not very kind to the reporter could have been dealt with in other ways without refusing to publish that letter altogether. However, that was in fact the attitude taken and it will be noticed from the letter of the Editor that there was no abandonment of politeness or courtesy though the acting Editor was quite firm in the defence of his reporter. He says that the Consul's letter is an attack upon the reporter and that the reporter is reliable; and, in the earlier paragraph, it is quite clear that he speaks politely of a misunderstanding that seems to have arisen on the part of the plaintiff.
6. The plaintiff on receipt of that letter went very properly and naturally to his solicitors--Messrs. Sanderson & Co. Messrs. Sanderson & Co. addressed to the Editor of the Englishman their letter of 6th August. That letter refers to the letter of the 5th refusing to publish the plaintiff's letter of the same date and it goes on to say that the following statements in the interview published on the 5th are entirely incorrect. Para. 1 refers to a statement that it was impossible for Italian manufacturers to compete with Lancashire for any length of time. The next two refer to the paragraphs in the interview--the paragraph beginning with the words, 'Both Britain and Italy' and the paragraph beginning with the words 'unless the manufacturers.' Both these paragraphs contain a certain amount of particulars which it would be a little difficult perhaps for a person to imagine that another had mentioned to him, if no mention of anything of the sort was made at any time. But the solicitor's letter having said that these two paragraphs of the statement to which I have referred are entirely incorrect goes on to say:
Our client denies that any of the statements in the three para. referred to were made by him and he calls on you to insert an apology in tomorrow's issue of your paper informing the public that the said three paras. are totally incorrect and that our client did not make any of the statements therein referred to. Unless an apology on these lines to the satisfaction of our client is published by you in to morrow's issue of your paper, our client will take such proceedings as he may be advised.
7. Now, a somewhat important matter for our consideration is what was the effect of this letter and what was reasonable conduct on the part of the newspaper upon receipt thereof. To begin with, I will observe that the letter is a solicitor's letter threatening proceedings unless in the meantime the newspaper does what is demanded. These proceedings can only be proceedings for libel and this is I think the first time at which the Englishman gets notice not merely that it is alleged that the reporter has misrepresented the opinions of the Consul about Italian piece goods but that their reporter has published matter which the plaintiff did not say and which is libellous on the footing that the plaintiff, unless he were unfit to be a Consul, never could have said it. When the newspaper got that formal notice from the firm of attorneys that a libel action was in progress, it appears to me that at that stage, at all events, it would have been very wrong indeed for them to delay another moment in bringing to the notice of their readers 1 he fact of the plaintiff's denial. If one looks at it from the point of view, first of all, of their readers, to them it had been represented that such and such were the plaintiff's opinions and, if the plaintiff says that these were not his opinions at all, it does seem necessary and right that the readers should be informed that what they were told as the Italian Consul's opinions were not his opinions.
8. If one looks at it from the point of view of the plaintiff, a man who has had the courtesy to give an interview to a newspaper reporter and then complains that not only has he been misrepresented but that the interview as reported is libellous, it seems certainly right that the newspaper should bring the fact at once in his interest to the notice of all its readers, that the person who granted the interview denies that ho has made the statements given. Again, if one looks at it from the point of view of the newspaper, it is imperative that the newspaper should communicate this denial at the earliest possible moment. If by any chance, it should be held that the statements published on the 5th were libellous, the paper had already missed one opportunity of publishing the plaintiffs denial of those statements. But when it got the solicitor's letter, it is obvious that the newspaper must either issue the denial to all its readers or, in the event of it turning out that the publication was libellous, it would be piling up damages against itself by every day's delay that intervened between the publication of the denial arid the original publication. There can therefore be no doubt whatever that it was the duty, moral and social, of the newspaper to publish this denial and there can be no doubt either that the newspaper and its readers had a common interest which justified publication of the fact that the Italian Consul was denying; that he had said words put into his. mouth on 5th August.
9. Let us go then to the next stage. Its is said that the defendants had only to apologize and that then no doubt there would have been no trouble at all. That certainly is so. But the defendants were not bound to apologize. The defendants took the view that their reporter's; report was bona fide. They took the assertions in the letter to mean that that reporter had done something which he could not honestly and truthfully have done.
10. Two whole paragraphs, according to this letter, were never spoken at all. According to the previous letter of the 5th, it was no question of misunderstanding because beyond certain names nothing had been said. That is the same case that was made in the plaint in this case and in the witness-box by the plaintiff; and if we ask ourselves whether there was good reason for the newspaper thinking that the allegations made against the reporter we allegations incompatible with the reporter's honesty, I can only say that the seems to me to be the natural meaning of the letter. However that may be, the newspaper taking the view that the reporter had not imagined the interview or concocted the opinions contained in it, made up its mind to stand by its reporter and to take the line that it was not satisfied that the reporter had done anything wrong and that it was not going to apologize; and in the circumstances, the newspaper published this letter which had been received from the solicitors. When the letter was published, the paper added the note about which the whole complaint now revolves:
We publish the above letter in order that the public may learn that the Consul-General for Italy denies the accuracy of the statements attributed to him in the Englishman of 5th August; as, however, we have no reason to doubt the veracity of our reporter whom we have always found extremely accurate and reliable, we are unable to tender the apology asked foe.
11. Now, so far as that note is concerned, it has two aspects. If the original interview as published was libellous of the plaintiff, then this note was a repetition of that libel. Apart from that, the first sentence in the note being clearly unexceptionable from any point of view, it is now contended that the statement:
We have no reason to doubt the veracity of our reporter whom we have always found extremely accurate and reliable
given as a reason why the solicitors' demand for an apology is not going to be complied with, is a new libel upon the plaintiff--not this time a libel by reason that it says that the plaintiff has been guilty of indiscreet remarks, but a libel in the sense that it means that the plaintiff is an untruthful person unfit to associate with honest people.
12. The learned Judge has dismissed the plaintiff's case upon the first head. He holds that there was no libel on 5th August. That being so, the note to the letter as published on the 7th is a repetition of something which is not libellous. The learned Judge has taken the view that, although it would seem that the observations as published on the 5th were indiscreet for a Consul, there is no such evidence as would entitle him to 'hold the statement that the Consul has made these remarks is defamatory in the sense that it brought him into hatred or contempt or that it involved that he is unfit to be a Consul-General. Prom that finding no appeal has been brought and it is not our duty to comment upon the -correctness of that opinion--neither have we the desire nor the right to criticize it. We must therefore take it that there was nothing libellous in the publication of the 5th.
13. We are entirely concerned now with the question whether the meaning of the note published on the 7th is defamatory as imputing that the plaintiff is a liar or an untruthful person who is unfit to associate with respectable people. On that [question the first thing I have to say is that it appears to me that as a matter of law--a mere matter of construction of the document--it is not capable of being read to mean that the plaintiff is a liar. It appears to me that any person looking at the note would collect that the newspaper regards the solicitor's letter as an attack upon the veracity of the reporter and that the sole purpose of the note is to explain in the face of a demand for apology that an apology will not be given because the newspaper has no reason to think that the reporter has been dishonest. It appears to me to be most unreasonable that a person who by his solicitors alleged, as the defendants at that time certainly thought, lack of veracity in their reporter should be allowed to say:
either you must at once admit his lack of veracity or I shall sue you for damages on the footing that you are impugning my veracity.
14. In my judgment on a reasonable construction of this note it is not capable of being read to mean an attack upon the character of the plaintiff. It is a defence of the character of the reporter.
15. Apart from that, let us see whether in the circumstances, there is anything which would entitle one to hold that such a note as this has a colour or meaning that cannot be collected merely from the four corners of the note itself. The only thing that the ordinary reader had to take together with this note was the interview as published on 5th August and the letter from the solicitors. The more closely the letter is read with the note the more readily it would appear that the point of view of the note is that the solicitors' letter is an attack upon the reporter. I am entirely unable to see how a person can think that he has a right to charge a reporter with having made a series of utterly unfounded statements and at the same time to say that, if the reporter or his masters stand by his reputation for truthfulness and confidence, the fact that the reporter's reputation has been challenged entitles the challenger to say that his own reputation has been put in peril. In my judgment therefore this alleged statement published is not defamatory. If that be so, no further question need be canvassed in this case.
16. On the view that the statement was defamatory, the next question that arises is whether the occasion was privileged. I have already said enough to show that, in my opinion, the newspaper was well entitled and had a social duty and a common interest with its readers to publish the solicitors' letters. It certainly had to publish the plaintiff's denial and I think of no the plaintiff had been to than to let the solicitors client in the column of That being so and it being the duty of the paper to bring this denial to the notice of its readers, it appears to me that the newspaper was well within its rights to put in what I regard as a very better way, as reasonable defence of their reporter. I do not think for one moment that it can be said that the publication of the solicitors' letter was an endeavour on the part of the newspaper to make publication of the fact of this little quarrel to people who had no concern with it. In this case, it was essential that it should ho published in the newspaper and, in my judgment, there was no way in which the denial of the plaintiff could be published in the paper which would not also in justice to the paper and to the reporter entitle the paper to put in what it did as to the reliability of the reporter.
17. The next question, if the occasion was--as I think it to be---privileged, would be whether or not there is any proof of malice either in the publication itself by abuse of the occasion or by reason of collateral evidence. I am wholly unable to understand why the learned Judge has thought that he finds evidence of express malice on the view that the newspaper was doing something which would be tactical in the event of a libel action. As the learned Judge puts it, this course was adopted for the purpose of securing an advantage in the view of litigation. The evidence of Mr. Mackie is no more than this that he and his director consulted and they thought that this was the fairest way to comply with the rights of both the parties. They thought that if they did that they would be doing something' which when the matter came before the Court, the Court would regard as reasonable and correct. To say that that is evidence of malice seems to me to be impossible. It does not become evidence of malice by referring to this very simple fact as ' maneuvering every position with a view to litigation.'
18. The only other matter which seems to me to call for detailed attention is this fact: The note to the letter was settled in substance at all events and probably passed at a meeting at which the acting Editor had the counsel of certain members of the Board of Directors. There were two gentlemen of the name of Watson in particular, and the matter being regarded as somewhat serious the note was really settled by the Director. Mr. Mackie in his evidence says:
Q. As regards your editorial note, was that settled by your directors ?
A. Yes; the substance was.
Q. Settled with them in consultation ?
19. So, we have to regard Mr. Mackie as a. person who was carrying out the orders or the desire, in which no doubt he concurred, of his Directors. I venture to think that these Directors would have been very much astonished indeed to be told if they had been told at the time, that to say that there was no reason to doubt the veracity of their reporter and that they were unable to tender the apology asked for was an attack upon the character of the plaintiff. It is quite clear that they must have been satisfied that no such meaning could have been read into it.
20. The letter of the previous day shows that Mr. Mackie had been most courteous in using language which avoided all question of making charges of bad faith against the plaintiff and, in my judgment the only difficulty in this case from be-ginning to end is the fact that in cross-examination Mr. Mackie was induced to accept the proposition that the defence of the veracity of the reporter was calling the plaintiff a liar. He gave some very foolish and indiscreet answers to the questions put to him which in subsequent cross-examination were thoroughly rubbed in. However, Mr. Mackie's opinion of what an ordinary man would take this note to mean is no way binding upon us and in my judgment, Mr. Mackie, is guilty of considerable confusion of mind: in thinking that because a man denies that his reporter is a liar he is necessarily calling another person by the same ugly epithet. It is true, however that when a person is repealing an attack and has the right to repeal a libel in public as the case is here a little is forgiven to him before any inference of malice is drawn. If the idea is that the newspaper was in this position that ones or other of these people being a liar they could not defend the reporter's veracity without impugning the veracity of the plaintiff in the sense of the plaintiffs honesty, that line of argument, will take the plaintiff nowhere in this case. That they were entitled to defend their reporter is in my judgment, clear and unless they went out of their way in so doing to make an attack upon the plain-tiff which was no reasonable part of their defence of the reporter, no inference of malice can properly be drawn against them. In my judgment, in this case there is no internal evidence of malice and there is complete absence of any reasonable evidence of malice upon external evidence.
21. In these circumstances, I am of opinion that this appeal should be allowed and the judgment and decree of the learned Judge set aside. The plaintiff must pay to the appellant their costs in both the Courts
C.C. Ghose, J.
22. I agree; but I would take leave to add a few words and state the conclusions to which I have come. In the first place, the interview with the plaintiff as published in the Englishman newspaper of 5th August did not, in my opinion, under any circumstances, constitute a libel on the plaintiff. In the second place, as regards the publication on 7th August of the letter from Mr. Sanderson and Co. with the footnote of the Editor attached thereto, the conclusion to which I have come after perusing the entire record is that it was clearly intended by the plaintiff that that letter should be published in the Englishman. If that was so, no question of 'excessive publication' can arise. Further the letters taken as a whole, to my mind indicates that the plaintiff was not, notwithstanding the Editor's letter to him, questioning the veracity of the reporter. In the third place, that being so, the Editor of the Englishman newspaper had to perform a duty towards the reporter, if he believed in the veracity of his reporter and to defend him against unmerited attacks. The note attached to the letter of Messrs. Sanderson and Co., does not mean anything more or less than this that, as the plaintiff had demanded an opportunity to place before the public his version of the matter, that opportunity was being afforded to him, and that at the same time the Editor was of opinion that the reporter whom he had employed for the purpose of interviewing the plaintiff was a reporter on whose word and on whose account of the interview reliance could be placed. In the fourth place, I am clearly of opinion that what was added as a footnote could not be regarded by any stretch of imagination as an attack on the veracity of the plaintiff unless it be that the plaintiff was so obsessed with the idea of libel or defamation in everything that met his eyes that he was unable to read into this footnote something which would not be apparent to any ordinary reasonable reader. In this view of the matter, I agree with my Lord in the order which he proposes to make.