Moving Unit Video Television v Maingaila (140 of 2016) [2019] ZMSC 247 (7 June 2019)

I, ~ • SCZ SELECTED JUDGMENT No. 18 OF 2019 P.569 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (Civil Jurisdiction) Appeal No. 140/2016 SCZ/8/74/2016 BETWEEN : MOVING UNIT VIDEO TELE (T / A MUVI TV LIMITED) AND APPELLANT FRANCIS MWIINGA MAINGAILA RESPONDENT ' \ Coram: Hamaundu, Malila, and Kabuka, JJS I On 4 t.1;£ June , 2019 and 7 th June, 2019 For the Appellant: Mr. D. Jere of Messrs Mvunga Associates For the Respondent: N / A (Notice of non-appearance Mwansa & Associates) by Messrs AD ------------------------------- JUDGMENT • I ¢' • . . '·i ' '{' . .. • • ' a. Malila, JS d elivered the judgment of the court. .. Case referred to: 1. Banda v. Zambia Publishing Company Limited (1982) ZR 4 2. Times of Zambia v. Kapwepwe 3. Reynolds v. Times Newspaper (2001) 2 AC 127 4. Roberts u. Gable (2008) QB 502 5. Bernard Kutalika v. Dyness Kalunga {Appeal No. 73 o/2013) (1973) ZR 292 @ - ' ' J2 P.570 6. Lapemba Trading Limited and Lapemba Lapidiaries Limited v. Industrial Trading Company Limited (Selected Judgment No. 2 7 of 2016) 7. Getrude Lumai and Mavuto Banda v. Paul Kaiche and Diocese of Mongu Development Centre {Appeal No. 013/ 2016) 8. Lonrho v. Fayed (1993) 1 WLR 1489 (at p. 1502) 9. Sata v. Chanda Chimba 111 (2011) lZR 519 Legislation referred to: 1. Defamation Act, chapter 68 of the laws of Zambia 2. Supreme Court Rules, chapter 25 of the laws of Zambia 3. WVH Roger's Winfield and Jolowicz on Tort, 16 th ed. Page 422 On 29 th July 2009, the respondent did something that he 1s unlikely to forget for a long time to come. He accepted to accommodate a female stranger for a night at his home. She happens to have been a minor aged below sixteen years old who reportedly had the misfortune of being stranded. The respondent was by profession a journalist who , in the description of the appellant, was a veteran in that profession. He had spent barely three weeks of his three months' probation in his new job at the largely popular, private television station, MUVT TV owned and operated by the appellant. A receptionist work colleague of the respondent had earlier in the day alerted him about the presence of a stranded minor at the TV J3 P.571 Station who needed accommodation for a night. Probably against better judgment on his part, he agreed to offer the young girl free accommodation for that night if she was willing to sleep in the kitchen of his one bedroomed house in Matero. The girl agreed, and off they went to Matero. We would not, of course, know exactly what happened overnight between the respondent and his juvenile guest, save to note that this was the issue in a criminal prosecution of the respondent in a subordinate court of which he was later acquitted. The respondent did, however, report for work the following morning in the company of the female minor and left her at the reception area of MUVI TV. He had some scheduled field assignments to undertake on that day. Just before he departed for those outdoor engagements, the Director of Operations at MUVI TV (the Director) asked him if he was aware of the female minor who was at the reception. Upon receiving an affirmative answer from the respondent, the Director intimated that he was about to consult a named senior police officer at Police Service Headquarters. The Director entreated the respondent to remain at .. • J4 P.572 his work station while he made that consultation. A while later, the Director asked the respondent to accompany him outside the building. As he was walking out of the building with the Director, the respondent was met, to his bemusement, by what appeared to have been a choreographed scene of fellow employees standing outside, watching him as he was being filmed by a seemingly pre-briefed cameraman. The Director thereupon instructed a police officer who had been positioned outside the building with the employees, to take the respondent to the police station, stating in the process that the respondent was a disgrace. The respondent was immediately thereafter led to a waiting police vannette as the filming continued amidst murmurs and jeers from his work colleagues. He was driven to Kalingalinga Police Post where, before his detention, an officer inf armed him that he was under instructions from the same named senior police officer who had earlier been consulted by the respondent's Director, to keep him in police custody as he was a defilement suspect. JS P.573 Later that day, when the 18:30 hours news was being broadcast on MUVl TV, one of the police officers on duty at the detention facility informed the respondent that he was in the news. Possibly out of curiosity, anxiety or both, the respondent moved to the entrance of the holding cell in which he had been lodged and through it, watched pictures on TV of scenes which were filmed earlier in the day of himself being led to a vannette by an armed police officer. The headline scrolling down the news story was "Journalist defiles a 13- year-old girl." The respondent also saw on TV and heard the newscaster read that a certain journalist by the name of Francis Maingaila (which almost perfectly described him) had allegedly defiled a girl that had gone to MUVI TV to seek assistance, and that Mr. Maingaila had since been taken to police in connection with the alleged defilement. That news story on TV) according to the respondent, went further and mentioned his employment position as an employee on probation at MUVl TV and further that the juvenile victim had J6 P.574 narrated how she had been sexually abused by him. When images of the juvenile were being shown on the TV screen as she was narrating what had allegedly transpired, the other inmates in the holding cell descended on the respondent and physically assaulted him, condemning him for what they said was raping a defenceless child when the city was awash with members of the world's oldest profession availably plying their trade. He was rescued from the lynching by a police officer on duty and moved to a female cell - which, incidentally, was empty. The next day he was conveyed to a different Police Station where he remained incarcerated for a week before he had his day in a subordinate court, charged with the offence of defiling his juvenile guest. He was later granted bail and immediately thereafter went to check the MUVI TV website and found the story of himself and the stranded juvenile posted there. The respondent was tried and subsequently acquitted of the charge. His demand for the appellant to make amends by offering him an apology for what he considered to have been a defamatory J7 P.575 broadcast, was rebuffed. He then commenced proceedings in the High Court for aggravated damages for libel and special damages for mental distress, anxiety) inconvenience and discomfort. The appellant, for its part, denied that there was any defamation arising from its broadcast of the defilement story implicating the respondent, and maintained that the publication complained of was made in the bona.fide discharge of the appellant's duty as a television broadcasting house without malice towards the respondent and in the honest belief that what was published was an accurate account of the events as they had transpired in a matter of public interest. After hearing the parties and their witnesses, the learned High Court judge was satisfied that the respondent had proved his case on a preponderance of evidence. She held that the respondent had indeed been defamed by the appellant's broadcast on the material day and was thus entitled to damages. She awarded the respondent K40,000 aggravated damages for libel and Kl0,000 special damages for mental distress and anxiety. These amounts were to be paid with interest at short term deposit rate from the date of judgment, and J8 P.576 thereafter at Bank of Zambia current lending rate until full payment. She also awarded costs to the respondent. Befuddled by that judgment, the appellant has appealed on three grounds which have been framed as follows: GROUND ONE The court below misdirected itself in law and fact when it rejected the defence of justification as at the time of publication, it was true that the respondent herein was arrested, detained and charged with an offence of def"tlement. GROUND TWO The court below misdirected itself in law and fact when the court held that the respondent was not given an opportunity to be heard when in fact he was in detention at the time of publication. GROUND THREE The court below misdirected itself in law and fact when it relied on a future event (acquittal) of the respondent in refusing the defence of justification for defamation that took place two years before. Heads of argument were filed by both parties. At the hearing of the appeal Mr. Jere, learned counsel for the appellant, adopted the heads of argument filed on behalf of the appellant and orally supplemented the arguments under ground three. The respondent's J9 P. 577 advocates, Messrs AD Mumba & Associates, filed a notice of non appearance pursuant to rule 69(1) of the Supreme Court Rules. We are impelled to consider the combined effect of the respondent's option and explain its practical and legal implications. The heads of argument filed on behalf of the respondent not only rebutted the argument made by the appellant's learned counsel in their heads of argument, but also raised two grounds of cross appeal. The gist of the cross-appeal is simply that as the broadcast of the subject article was done on four distinct days, each of those constituted a fresh publication which created a new cause of action. The court should have treated each of those publications as distinct and should have proceeded to awarded damage separately on each of those publications. Counsel suggested that the global figure of K40,000 given as damages for aggravated defamation and Kl0,000 as special damages, should have been replicated in respect of each of the distinct publications. J10 P.578 Granted that the respondent's heads of argument were filed only on 31 st May, 2019 and served on the appellant's advocates rather late in time, Mr. Jere applied for leave to file the appellant's heads of argument in opposition to the cross-appeal out of time. We asked Mr. Jere whether he had been served with any notice of cross-appeal by the respondent. He responded that he had not been served. Our own record equally showed that no notice of cross appeal was filed by the respondent in obedience to rule 61 of the Supreme Court Rules, chapter 25 of the laws of Zambia which enacts as follows: (1) It shall not be necessary for a respondent to give notice of cross• appeal, but if a respondent intends upon the hearing of the appeal to contend that the judgment of the court below should be varied he may, at any time after receiving the notice of appeal, but not more than fourteen days after the service on him of the record of appeal, give notice of cross-appeal, specifying the grounds thereof, to the appellant and to any other respondent ... and shall file in the Registry within the like period .... copies of such notice .... Jll P.579 (31 If the respondent fails to give such notice within the time prescribed, he shall not be allowed except by leave or the court, to contend on the hearing of the appeal that the judgment appealed against should be reviewed. The respondent's option not to appear at the hearing once again confirmed the validity of the lamentations we have recorded in numerous cases including Bernard Kutalika v. Dyness Kalungat 5J and Lapemba Trading Limited and Lapemba Lapidiaries Limited v. Industrial Trading Company Limitedf 6J, that in as much as parties to an appeal are at liberty to avail themselves of the benefits of rule 69, which entitles them to dispense with their attendance at the hearing, there are dangers that lurk in taking that option. In Getro.de Lumai and Mavuto Banda v. Paul Kaiche and Diocese of Mongu Development Centref 7J, we explained the disadvantage to a party resorting to rule 69 as follows: Much as parties to an appeal are perfectly within their rights to file a notice or non~attendance and thereby avert or minimize costs, the party who does so instantly deprives himself or herself or the opportunity to offer such explanation in aid of that party's position in the appeal as the court may consider apposite. Such clarification may be necessary for easier comprehension of the chronology of events preceding the appeal which may not be apparent from the J12 P. 580 record of appeal or the arguments purporting to support the appeal. This could be in spite of, and in some cases, because of the heads of argument filed. A party which opts, as the appellants did in this appeal, not to appear at the hearing by filing the rule 69 notice, may put their position in the appeal in a precarious situation as it places their appeal documents and the heads of argument in a fait accompli ... This passage, in our view, properly sums up the position before us in regard to the respondent's cross-appeal. Given the direction of rule 61 as we have earlier quoted it, we did not entertain Mr. Jere's application to file the heads of argument in response to the respondent's cross-appeal which was, on all accounts, incompetent. We ruled accordingly that the heads of argument in support of the cross-appeal be expunged from the respondent's heads of argument. In arguing ground one of the appeal, the learned counsel for the appellant, after quoting from the broadcast complained of, submitted that everything contained in the statement as published through that broadcast, was factually correct. The learned trial judge should therefore, have accepted the defence of justification as set up by the appellant. The learned counsel also quoted section 6 of the J13 P.581 Defamation Act, chapter 68 of the laws of Zambia which provides that: In an action for libel or slander in respect of words contained in two or more distinct charges against the plaintiff a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff's reputation having regard to the truth of the remaining charges. Mr. Jere submitted that the words that the respondent claims to be defamatory were admitted to be true. The appellant was thus justified in airing the said publication as it was a true account of the occurrences of the relevant period. We were urged to uphold ground one of the appeal. Turning to ground two of the appeal, it was the position of the appellant that the court erred when it held that the respondent was not given an opportunity to be heard as he in fact was in detention at the time of the publication of the allegedly offensive broadcast. J14 P.582 The learned counsel submitted that from the evidence adduced 1n the lower court it was established that the common practice prevailing as regards publications is that any person affected was ordinarily given an opportunity to have his or her side of the story heard before the story is published. Where a news item or story is published without one party giving his/her side of the story, such party was at liberty to lodge a complaint following which the publisher of the story would afford an opportunity to that party to equally give their reaction. It was also submitted that the respondent, as a person from the media fraternity, knew or ought to have known this position and it was incumbent upon him to have lodged a complaint with the appellant for an opportunity to be afforded to him to tell his story. Instead, the respondent waited for two years before demanding a retraction of the story from the appellant. Mr. Jere also submitted that one of the appellant's witnesses (DW2) testified at trial that all the necessary benchmarks for publishing a news story were met in respect of the publication which JlS P. 583 the respondent found offensive. Although the respondent alleged that DW2 did not confer with another of the appellant's witnesses (DWI) on the allegedly offensive news story before it was aired, the respondent, according to counsel for the appellant, produced no evidence to substantiate that allegation. He submitted that the real reason for the appellant's failure to obtain the respondent's reaction to the story before publication was because the appellant could not get hold of the respondent as he was in police custody at the material time. Counsel also referred us to the evidence of DW2 who told the court that it was, in any case, not necessary to get the respondent's side of the story because the publication complained of merely stated a trne and accurate account of the events of that day as they occurred, namely, that the respondent had been arrested and detained by the police on suspicion that he had committed the offence of defilement. The appellant's publication did not comment on either the victim or the suspect's version of the story. Jl6 P. 584 Under ground three of the appeal, the appellant submitted that the court misdirected itself when it relied on a future event, that is to say, the acquittal of the respondent, to base its rejection of the defence of justification for an alleged defamation that took place two years previously. The learned counsel quoted from WVH Roger's Winfield and Jolowicz on Tort, 16 th ed. page 422, where it is stated that: We have seen that the question of whether a publication is defamatory must be determined on the basis of the article itself and the surrounding circumstances and words cannot become defamatory by virtue of late information or events. Counsel gave the chronology of events on the material day and reiterated his submission that it was wrong for the court to have relied on the acquittal of the respondent that came some two years later, to decline the defence of justification to a defamatory publication that occurred before the acquittal. He ended by quoting a passage from the case of Banda v. Zambia Publishing Company Limited( 1J to the effect that justification is a defence to defamation. J17 P.585 In orally supplementing ground three of the appeal, Mr. Jere reiterated that it was decidedly wrong for the lower court to have made the appellanfs acquittal the reason for declining the defence of justification. He added that if this approach, adopted by the lower court were allowed, no media house would survive. The learned counsel for the appellant raised one other issue in his oral arguments, namely, that the respondent's claim as strnctured in the pleadings were akin to claims for false imprisonment and malicious prosecution rather than defamation, and the lower court should thus never have entertained the claim. When we asked the learned counsel whether he had raised this issue in the lower court, he stated that he had. Asked further whether he had this grievance set out as part of his grounds of appeal, Mr. Jere confirmed that he had not. We took the learned counsel through the respondent's claim as set out in the statement of claim which expressly referred to defamation. He quite fairly conceded that, that issue of pleading could not properly be raised in the manner he was J18 P.586 attempting to bring it forth. The learned counsel nonetheless beseeched us to uphold ground three of the appeal. We stated earlier in this judgment that the respondent's learned counsel filed their heads of argument very late in time (on 28 th May 2019). In responding to ground one of the appeal, counsel for the respondent supported the finding of the lower court that the defence of justification was not available to the appellant and quoted a portion of the findings of the lower court which we shall reproduce later on in this judgment. Counsel further argued that the defence of justification is only available when a statement of facts as published by the author of the alleged defamation are true. In the present case, according to the learned counsel, the appellant knew through the medical report that the alleged victim was never in fact defiled. He referred us to the case of Banda v. Zambia Publishing Companyt 1J as authority for that submission. J19 P.587 The learned counsel also submitted that the appellant's action of publishing a false story of defilement, having partially verified the facts and having ignored the medical report, fell below the standard of integrity and responsibility of the appellant as a professional media organization. He cited the case of Times of Zambia v. Kapwepwel 2) to support this submission. Counsel urged us to dismiss ground one of the appeal. In respect of ground two of the appeal, the learned counsel for the respondent quite expectedly supported the holding of the lower court judge that the respondent was not given an opportunity to be heard before the story unfavourable to his reputation was broadcast. Counsel drew our attention to the evidence of DWI that whilst the alleged victim was narrating her purported defilement ordeal to her, the respondent kept walking in and out of the News Room where the narration was taking place. Furthermore, that DW 1 called in the appellant's Director and his Secretary to hear the narration for themselves from the girl. Not only that, the respondent was stopped from going for his outdoor assignment and remained in the J20 P.588 appellant's premises as the Director was consulting a named senior officer at Zambia Police Service Headquarters. Counsel for the respondent also pointed to the contradiction in the evidence of the appellant's witnesses as recorded in the lower court where DWl testified that the respondent was interviewed by DW2 but remained silent. DW2 on the other hand claimed that he was also merely informed that the respondent had been interviewed. Later the witness stated that no interview of the respondent was in fact done. The bottom line, according to counsel, is that the respondent was not given an opportunity. This goes against the considerations prescribed by the House of Lords in Reynolds v. Times Newspaper{ 3J that a publisher of otherwise defamatory public interest news is obliged to obtain a comment from the person subject of the publication. Counsel implored us to dismiss ground two of the appeal. Turning to ground three, counsel contended that the rejection by the lower court of justification as a defence was not, as claimed by J21 P.589 the appellant, premised on the acquittal of the respondent even if reference was made to that fact. The lower court relied on the circumstances and conduct of the appellant in publishing and repeating the publication of the defamatory article on specified dates. Counsel for the respondent prayed that we dismiss ground three of the appeal as well. We have considered with interest, the clashing arguments made on behalf of the parties. We wish to preface our reflection on them by pointing out that it is beyond argument that the law of reputation seeks to achieve a satisfactory balance between two competing interests, namely the right of the individual to be afforded protection against harm to his reputation, on one hand, and that of members of the public to free speech and proper access to information, on the other hand. Put in the context of television broadcasting, which is what this appeal is all about, we must state that it is crucially important that there should be a free press that keeps the public informed, especially on matters of public interest. This free press should not J22 P.590 be stifled by highly restrictive defamation laws or judicial interpretation of those laws which unduly oppresses the press and undermines dissemination of information, At the same time, the law cannot ignore the fact that the broadcasting media is an extremely powerful agency which is able to reach enormous numbers of members of the public instantly. If, and when, such media publishes defamatory material, the end result is devastatingly harmful to the subject's reputation. It could irreparably ruin a good name built over years. Turning then to ground one of the appeal, the appellant has accepted that it did publish the article which caused offence to the respondent. It claims, however, that it did broadcast an event touching on defilement, a subject of immense public interest. The events, according to the appellant, were broadcast as they had occurred, accurately and with no malicious intent whatsoever. In other words, the appellant pleaded justification on a matter of public interest and without what, in the Latin days of the law, we would call the animus injuriandi. That may have been the case, but did the J23 P.591 appellant truly satisfy the basic requirements for the defence of justification to hold? We shall revert to this aspect shortly. Before doing so we ought to consider the details of the allegedly defamatory article and its broadcast. The news item about the respondent was broadcast on the appellant's TV at prime news time on Thursday 30 th July 2009, at 18:30 hours and read as follows: Veteran Lusaka journalist, Francis Maingaila has allegedly defiled a 15-year-old girl who came to MUVI Television seeking assistance. Mr. Maingaila who had just served three weeks of his three months' probation at MUVI TV was picked up by the police in connection with the alleged defilement. And the victim narrated how she was allegedly lured by the suspect. She was speaking to MUVI TV News. The broadcast of this statement was said to have been repeated at 21: 30 on the same day, and the fallowing day, Friday at 06: 30 hours and also on Sunday 2 nd August 2009, at 10:00 hours. This much was not disputed by the appellant. J24 P.592 The respondent claimed that the statement as broadcast was defamatory of himself because in their ordinary and natural meaning, the words used in the statement were understood by right thinking people of society generally to mean that the respondent was a child rapist; immoral and a danger to young women and girls; a trickster who lures female minors for defiling; and a criminal who should be kept in prison to protect the general public. The appellant for its part, denied in the first place that the statement was defamatory. We take a short detour to consider whether the statement complained of, was in the first instance, indeed defamatory. This is undeniably necessary, for if the statement was not at all defamatory, consideration of all the arguments now before us would have no more than mere academic significance. The basic test that is employed 1n establishing whether a statement is defamatory or not is that of examining how an ordinary, right-thinking person of the society generally would respond to the statement; in this case, an ordinary reasonable TV viewer in Zambia. J25 P. 593 The test does not entail taking into account how a television viewer and listener, with a peculiarly cynical mind, or how an exceptionally sensitive or hypercritical viewer would react to the news item. Nor does it identify with how a highly virtuous person, who always thinks perfectly, rationally and totally devoid of all prejudices, would respond to the information broadcast. Instead, it is the likely reaction of an ordinary person of average intelligence. Thus, if a person is being prosecuted for a crime, but has not yet been convicted, the highly ethical individual who is completely fair minded, would adopt the stance that such person is presumed innocent until his guilt is proven and thus would suspend all judgment upon the guilt of that person until the court had ruled. The reaction of an prdinary person, a right-thinking member of the society, however, is more likely to be that the prosecution would never have been brought unless the police had cogent evidence that he was guilty. J26 P.594 The lower court found that the plain meaning of the allegedly offending publication was that the respondent was being investigated; in fact, had been arrested, for improper or immoral behavior, and that he had committed an act of defilement. The broadcast came after the alleged defilement victim had been medically examined and the result of that medical examination made known or capable of being known 1 at least to the police who were working in concert with the appellant's officers. The item broadcast should thus have had an intimation that a medical examination had since been done and the results if known - given in the statement; if not known - mention of this fact given in the broadcast news item. That would have given some level of fairness and completeness of the picture of events of the matter up to the time of the publication. The overall tenor of the publication as broadcast was that the case against the respondent had overtaken mere allegations of defilement. An ordinary, right-thinking person of society generally would, in the circumstances as narrated, veer towards paying J27 P.595 sympathetic attention to the story of the alleged victim and drawing adverse conclusions in relation to the alleged defiler - the respondent. Applying the test as explained, we agree with the lower court's finding that the publication as understood by the ordinary right thinking TV viewer and listener were defamatory of the respondent in that they cast aspersions of his character, lowered him in the estimation of ordinary right-thinking persons in society generally. The appellant claimed the defence of justification and that the lower court judge was wrong in rejecting that plea. Indeed, as was held in the case of Banda v. Zambia Publishing Company LimitedflJ: A plea of justification was a complete defence to an action for libel. To establish the defence the defendant ought to prove that the defamatory imputation was true in substance and fact. In Lonrho u. Fayed( 8J the court stated that: .... [N]o one has a right to reputation which is unmerited. Accordingly, one can only suffer an injury to reputation if what is said is false. In defamation, the falsity of the libel or slander is presumed; but justification is a complete defence. J28 P. 596 The same position was recapitulated in Sata v. Chanda Chimba IJ[t9J where (at p. 556) the court stated that: Justification means truth. It is an absolute defence in a civil defamation claim that the statement in question is true, or substantially true. It is irrelevant for the purpose of defamation that its publication constitutes a gross breach of privacy or confidences or that it is contrary to public interest. The purpose of civil law is to compensate a claimant not to punish a defendant. The appellant's claim, as we understand it, is that the publication as broadcast on its TV was contextually correct as the respondent was accused by the girl to have lured her and sexually abused her. He was later lodged in police custody on suspicion that he had defiled the complainant. And this was what the broadcast stated. The learned judge in the court below, however, rejected the defence of justification on the basis that what the appellants had published in their TV broadcast was not factually correct. She was alive to the chronology of events of the 30 th July 2009. One of the witnesses, DWl (Delphister LunguL and other employees (Inutu Mpango Mwanza) had, on instruction from the Managing Director, J29 P.597 accompanied the alleged victim of defilement to the UTH for a medical examination to confirm the defilement. This witness testified that she waited for the girl to be examined and saw the doctor hand the medical report to the police although she had no access to it. The learned judge did not accept the fact that DW 1 would accompany the girl to UTH, wait for the examination to be done on the girl and see the medical report prepared, and yet not be concerned to check what the findings of that medical examination were. The judge concluded that the result of the medical examination must have been known to DWI, and through her to the appellant. Mr. Jere, in his oral augmentation of the appellant's heads of argument, had quite understandably mentioned that whoever may have gone to UTH with the juvenile for purposes of procuring a medical examination, was not representing the appellant and the court should have treated them as such. We cannot, however, accept that assertion by the learned counsel for a variety of reasons. First, this should have been a matter of witness evidence in the trial court. It cannot come to us for the J30 P.598 first time by way of a submissions by counsel. Second, DWl herself told the lower court that she was in charge of the community news desk at MUVI TV and was responsible for liaising with the child protection unit of the police. As such, what she was doing at the hospital was in tune with her official duties. Third, and more importantly, OW 1 was instructed to go to UTH with the juvenile by no less a personage than the august figure of the Managing Director of the appellant himself. Fourth, the witness and her colleague made the sojourn to the hospital during working time. When these circumstances are considered in perspective, it is preposterous to suggest that in accompanying the juvenile to UTH, DWl and her work colleague were doing no more than voluntary community service out of passing interest. The medical report was available long before the 18:30 hours news. The learned judge below concluded that the appellant knew the truth, as explained in the medical report, that the girl had not been defiled before their news broadcast at 18:30 hours, but opted nonetheless, to broadcast the story, hoping to find an escape window J31 P.599 in the word allegedly which was advisedly used in the news item. We cannot but agree with learned High Court judge on this score. Having been privy to the arrangements for a medical examination, the result of that medical examination became absolutely relevant to the allegation of defilement against the respondent and inevitably became part of what should have been the full story making up the truth of what the appellant should have broadcast about the alleged defilement, if they were still inclined to do so. By opting to broadcast the story without disclosing the result of the medical examination, or the fact that the result of a medical examination conducted were unknown, which would have changed the tenor of the allegation against the respondent and probably taken the wind out of the sails of the defilement story, the appellant had acted recklessly and certainly without regard to the caution we gave in Times of Zambia v. Kapwepwef 2} where we stated that: Journalism is a professional calling for the highest standard of integrity and responsibility. The news media have tremendous influence, particularly in a comparatively small country where competition between the media is minimal. The publication of this J32 P.600 libel without any attempt to verify the facts, and the defendant's subsequent conduct, represents the height of irresponsibility. We shall revert to the issue of responsible journalism when we deal with ground three of the appeal. For now, suffice it to note that in the present case, not only did the appellant fail to get the respondent's side of the story; it also chose not to disclose the result of the medical examination, or at least to state that such examination had been done but the results were yet unknown to the appellant. This in itself raises serious questions about the motive behind the appellant's broadcast. Our considered view is that the broadcast was most probably malicious. We say so because first, although the appellant would have got the respondent's side of the story either before or after he was incarcerated, it did not. Second, the filming of the respondent in front of his workmates paraded for the purpose was prearranged to embarrass the respondent. Finally, the appellant concealed the issue about the medical examination. ' ... J33 P.601 We agree, therefore, with the lower court that having disclosed part only of the story in circumstances that smack of malice, justification was not available to the appellant. We turn now to the question whether the broadcast was justified on grounds that it was on an issue of public interest. We have already stated that the press should not be stifled in their dissemination of matters of public interest. Yet, this is not a blank cheque. That liberty to publish matters of public interest is circumscribed. Reportage, as it was articulated by the UK Court of Appeal in Roberts v. Gablef 4Jis, of course, a defence in defamation cases. This public interest defence has been developed in order to protect news media from defamatory actions arising out of the reporting of information of importance to the public. In Reynolds v. Times Newspaper1 3J the House of Lords, while recognizing the public interest defence, stressed that two essential elements ought to be established for the defence to be successfully raised (the Reynold's qualified privilege' defence), namely (i) that the article as a whole must be in J34 P.602 public interest; and (ii) there must be responsible journalism. This latter point resonates with what we stated in the Times of Zambia v. Kapwepwef 2J which we adverted to earlier on in this judgment. The House of Lords in the Reynoldsf 3J case went further to set out a non-exhaustive list of factors which would be relevant to. the issue of whether the standard required to meet the test of responsible journalism had or had not been satisfied in a particular case. As quoted by the lower court, these factors, in paraphrase, are; the gravity of the allegation; the essence of the information and the degree to which it concerns the public; the source of the information; the steps taken to verify the information; the urgency of the matter, bearing in mind that news is often a short lived commodity; whether a comment was sought from the person allegedly defamed; whether the article contained the gist of the plaintiffs side of the story; the tone of the article and the circumstances of the publication, including the timing. , .. J35 P.603 Our view is that indeed the scourge of defilement has been one of serious concern in the Zambian body politic and has seen a concatenation of efforts that have culminated in the imposition of very stiff punishment for defilers and the establishment of fast-track courts to deal with, among others, defilement cases. All these efforts are made in the firm belief that the vice of defilement is a sore on the moral fabric of society, so that sensitization of the public to this evil is heightened. It is thus a matter of public interest. Any publication justified on the basis of public interest ought, however, to take into account the factors that were set out in Reynolds v. Times Newspape-rf 3J as we have set them out above and other exigencies peculiar to each case. Weighed against those requirements, the circumstances surrounding the broadcast of the respondent's defilement story cannot, in clear conscious and justice, measure up to the standard necessary to satisfy responsible journalism. , ' J36 P.604 The source of the information in this case was one-sided; no steps were taken to independently verify the information and the respondent's side of the story was above all not sought. Furthermore, a material part of the story to do with the medical examination was either negligently omitted or deliberately concealed. We do not, therefore, think that public interest, taken in isolation, can justify the appellant's broadcast. The upshot is that ground one is destitute of merit and it must fail. We dismiss it accordingly. In ground two, the appellant has raised two reasons for the appellant's failure to get the respondent's side of the story before publication, namely, that the respondent was in detention, and secondly that he was at liberty to lodge his side of the story after the publication. We grieve to say that we find both these claims incredible and unavailing to the appellant. The respondent was available to offer his side of the story before it was broadcast, both prior to and after his incarceration at Kalingalinga Police Post. In the judgment, now . - ' .. J37 P.605 being assailed, the learned judge gave a fairly extensive and meticulous review of the evidence which formed the basis of her conclusion that the respondent was unjustifiably denied the opportunity to be heard before the publication. She states at [J3 l) in a passage which was also reproduced by counsel for the respondent in their heads of argument, as follows: It is noteworthy also that the plaintiff [respondent] was not given an opportunity to tell his side of the story. I say so because DWl and DW2 materially contradicted themselves on this score. DW2's testimony was clear that one of the benchmarks the defendant considers before a story is published is verification with the other side either by phone or interview on TV. When cross-examined on whether the plaintiff [respondent] was interviewed he said that he was informed that he was. However, none of the people that interviewed the plaintiff [respondent] were called to confirm this. DWI on the other hand, testified initially that the plaintiff [respondent] when interviewed by DW2 and the Managing Director, opted to remain silent. She later changed and stated that he was interviewed by Dr. Jere. She did not know what he said because she was not present at the said interview. I must add that from the evidence before me, it is clear that the plaintiff [respondent] was not afforded an opportunity to give his side of the story. Additionally, the defendant never informed the public that he had remained silent when interviewed, or what he said, nor l J38 P.606 did it state that he was afforded an opportunity when it broadcast the story on 30 th July 2009. In the heads of argument in support of ground two of the appeal, the appellant's learned counsel suggests that the reason the appellant was not given the opportunity to give his side of the story was because he was in detention. Besides contradicting sharply with the reasons given in the evidence of DWI for the omission as we have captured them in the portion of the lower court's judgment, which we have latterly quoted, the appellant failed to explain why the appellant's Director, who first informed the respondent that he was consulting a senior police officer regarding the young girl at the reception, failed to solicit the respondent's views on the allegation that he had defiled her . Granted also that by DW 1 's own evidence , the appellant's community news desk liaised closely with the police, access to the respondent while in police custody ought to have been sought in order to obtain his own views before the story was broadcast. Ground two 1s without merit and it 1s here by dismissed accordingly. J39 P.607 Turning to ground three of the appeal, the appellant claims that it was wrong for the court to have relied on a future event (i.e. the respondent's acquittal) in rejecting the defence of justification that took place two year previously. We have already referred to Mr. Jere's spirited oral augmentation of this ground. We have no trepidation in holding that this ground is equally bereft of merit. The learned judge did not base the rejection of the defence of justification on the acquittal of the respondent; rather it was on the basis that the whole truth as could easily have been ascertained, was not taken into account when the broadcast of the offensive item was made. We have already pointed out that the three factors that undermine the appellant's claim that it lacked malice in all this are first, the failure to obtain the respondent's side of the story, second the arranged parading of the respondent's workmates and his filming and finally the failure to take into account the content, or at least the mention of the medical examination before the broadcast. All these factors seriously militate against the defence of justification in the present circumstances. These issues have been I .. • J40 P.608 spoken to in our consideration of the previous grounds. It follows that ground three must be dismissed. The upshot of our judgment is that the whole appeal fails. ln conclusion, we wish to state that there is much to be said about the issue of damages. More specifically whether the claim for exemplary damages was well anchored and equally whether the award of the amounts given by the court were appropriate. None of these issues were, however, properly raised by either party in the court below, nor were they raised here. We shall allow sleeping dogs to lie. Costs shall abide the event. " • • • • • • . E. M. Hamaundu - I e ~ • e • • '" '" • • • • • • • • • I • • ♦ I I • • "' • SUPREME COURT JUDGE I I • t I ♦ e • I t ,t ~ + t ♦ ♦ • ♦ ♦ • _• •· • • • • I'('~~ ·- . ..- M. Malila • ,:_~"'<.:.,_y l • SUPREME COURT JUDGE J. K. Kabuka SUPREME COURT JUDGE