Perera, M.G. V. Peiris, A.V.

[IN THE PRIVY COUNCIL]

1948     Present: Lord Uthwatt, Lord Mortem of Henryton,
Lord Mac Dermott, Sir John Beaumont

M. G. PERERA, Appellant, and A. V. PEIRIS et al., Respondents

Privy Council Appeal No. 2 of 1947

S. C. 84-D. C. Colombo, 15,069 

Defamation-Report of Bribery Commission-Public interest-Privilege- Malice-Animus injuriandi of Roman Dutch law-Ordinance No. 25 of 1942-Sections 6 and 10.

In Roman Dutch law animus injuriandi is an essential element in proceedings for defamation and where the words used are defamatory, the burden of negativing animus injuriandi is on the defendant. If malice in the publication of a particular report of any body is not present and the public interest is served by the publication, such publication must be taken, for the purposes of the Roman Dutch law, as being directed to serving that interest and will be privileged and the animus injuriandi will be negatived.

Held, further, that the publication of the name of a witness was not a breach of the provisions of section 6 (1) of Ordinance No. 25 of 1942.

APPEAL from a judgment of the Supreme Court. The judgment of the Supreme Court is reported in (1946) 47 N. L. R. 49.

G. O. Slade, K.C., with Stephen Chapman, for appellant.-If any privilege could attach to the publication in a newspaper of a fair and accurate report of the proceedings before the Bribery Commissioner, it would attach only in so far, if at all, as they were open to the public. No privilege could thus attach to a report of any part of the proceedings which the Commissioner decided to hold in camera, and a fortiori to any part, the publication of which was not authorised by the Commis­sioner. If the publication was not made by the respondents with the authority of the Commissioner under Section 6 (1) or Ordinance No. 25 of 1942, it would be an offence under Section 11. The Commissioner did not authorise the publication. The view of the Supreme Court that the respondents had his "implied authority" has no basis and is incorrect. The Commissioner in his report states that the question of publication is not for him, clearly indicating that he was not authori­sing publication of his report or any part of it. D3 shews clearly it was the Governor who authorised the publication. There is no evidence to shew that the Governor had any over-riding power to authorise publi­cation. Section 6 has to be read in conjunction with Section 10 (b). Publication of the name or the evidence or any part of the evidence of any witness heard in camera, save with the authority of the Commissinor, is illegel. The view of the Supreme Court is inaccurate, for it leads to the position that the words "of the name" are mere surplusage.

In any event, this Commission of inquiry was not a judicial or quasi-judicial proceeding, so as to clothe with qualified privilege a fair and accurate report in a newspaper of its finding and proceedings, even if publicly heard.

[Mr. Slade at this stage stated that express malice is not being alleged by him, nor was it alleged in any of the lower Courts. His argument wo

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