La Cour Suprême condamne Le Mauricien Ltd pour diffamation envers la Clinique du Nord

C’est un jugement qui fera date dans l’histoire de la presse et les affaires de diffamation. La Cour Suprême a condamné la mauvaise foi du groupe Le Mauricien vis-à-vis de la Clinique du Nord. C’est tout le mythe du groupe de presse de la rue St Georges qui vole en éclat. Notamment les comptes rendues approximatives de la séance question réponses du Parlement. Dans le présent cas, les élucubrations de son journaliste ne se trouvaient pas le Hansard Officiel. “In the light of the above legal principles, and of the evidence adduced and
considered above, I consequently hold that the defendants’ plea of a faithful reproduction of
the debates at the National Assembly fails in that they have, in presumed and unrebutted
bad faith, reported facts which are not true under the photographs when what is narrated in
the body of the article proves the footage of the photographs to be untrue regarding the
place of the two deaths which occured at the Victoria Hospital, albeit following the liposuction
treatments by the deceaseds’ own doctors at the plaintiff’s Clinique du Nord. The articles
had also been unfairly and hastily published on the very date of the debates on the subject
at the National Assembly without proper enquiry, and occulting the then Leader of the
Opposition’s observation that it was difficult to establish any nexus between the liposuction
and the cause of the deaths. The defendants are therefore at fault and are liable to pay
damages to the plaintiff….In considering the quantum of damages, it is a fact that the headlines and unverified
statements are highly defamatory. There was also a hasty, factually incorrect, misreporting
of the essence of the tenor of what was said at the National Assembly”, écrit le juge Raffeek Hamuth dans son verdict. ” Le Mauricien Ltd devra payer des dommages de l’ordre de Rs 300 000 avec intérêt aux taux légal depuis décembre 2011.

Voici le jugement

JYOTI’S CLINIC LTD v LE MAURICIEN LTD & ORS

2018 SCJ 113

Record No.: 106195

IN THE SUPREME COURT OF MAURITIUS
In the matter of:
Jyoti’s Clinic Ltd
Plaintiff

v/s

1. Le Mauricien Ltd
2. Jacques Rivet
3. Gaetan Seneque
Defendants

JUDGMENT
The plaintiff is, it is averred in its plaint with summons, a well-known clinic, both
nationally and internationally, under the name of Clinique du Nord. It is presently composed
of 30 high standard rooms, with several departments and provides various services as listed
in its plaint with summons. It treats foreign nationals and is connected with a network of
international insurances and health assistances. The plaintiff has averred that it is the first
clinic in Mauritius to provide laser skin treatment by laser trained professionals and to offer
dialysis and dentistry services on a 24-hour and 7-day basis. It is also the first to operate an
anti-ageing clinic in Mauritius.

The first defendant is the owner and publisher of the daily newspaper ‘Le Mauricien’,
which is widely distributed and read locally, abroad and on the internet by both local citizens,
tourists visiting the Island, Mauritians who have settled in foreign countries as well as foreign
nationals. The second defendant is the Director of defendant No. 1 and the third defendant
is the Editor in Chief of the said newspaper. The plaintiff avers that the second and third
defendants have direct control over the articles published by defendant No.1 and
consequently, they are responsible for all the articles published in it. Similarly, defendant
No. 1 is also responsible for the wrongful acts and omissions of its ‘préposés’ and/or its
employees who are directly or indirectly involved in the publication of the impugned articles
and photographs.

 The plaintiff is suing the defendants in defamation in respect of an article which
appeared in the edition of the 17 November 2011 of ‘Le Mauricien’ at page 1 of which the
following caption appears in big bold characters: ‘PNQ: Le mercantilisme medical mis à
l’index..’ together with a photograph of the plaintiff’s “Clinique du Nord” with the following
caption underneath the photograph ‘La clinique du Nord où Mme N. V. est décédé le 29
Octobre 2010’, and at pages 6 and 7. Another photograph of the plaintiff’s clinic was
published at page 7 with the following footage: ‘La Clinique du Nord au centre de la
controverse sur la liposuccion avec deux décès en 2006 et en 2010’ which is alleged to
have tarnished its honour and reputation and affected its business adversely. The plaintiff is
praying for a judgment condemning the defendants to pay to it jointly and in solido the sum
of Rs 100,000,000/-.

It is the plaintiff’s case that reading those two parts of the article referred to above,
right thinking members of the public will inevitably conclude that :
(a) the two patients died at the clinic; and
(b) the clinic was responsible for the deaths of the two patients who passed away
in 2006 and 2010.
The plaintiff has averred that the information published referred to above is “a pack of lies”
and further that:

“(a) Mrs. N. V. did not die at the clinic nor was the clinic ‘le centre de
controverse sur la liposuccion’ and it is also a blatant lie to say that
two patients have died following treatment of liposuction at the clinic.

(b) The article wrongly published was meant to convey a clear message
to members of the national and international public at large that the
plaintiff was the black sheep in the field of private medecine and it was
not a trustworthy and reliable institution.

(c) The doctor who had actually carried out the liposuction surgery was
not the focus of attention of the article but instead the annotations
under the two paragraphs in the newspaper which wrongly focused
the attention of the readers to the clinic.

3 (d) All the attention about the risk of liposuction and the two deaths were
directed to plaintiff’s clinic as if it was responsible for those deaths and
the plaintiff averred that such practice is undoubtedly wrong,
unprofessional, malicious and is an intentional act perpetrated with a
view to causing prejudice to the name, fame and reputation of plaintiff
which had been painstakingly nurtured over the years at great costs
and sacrifice.

(e) The article clearly meant that the clinic had been guilty of malpractices
and/or unprofessional conduct thus falling short of its duties and
obligations in providing its services to liposuction patients and that the
plaintiff and those involved in its management are likewise grossly
negligent and imprudent in providing treatment at the clinic.

(f) The article clearly meant to inform members of the public, albeit
wrongly and maliciously that the health and well-being of the patients
at the clinic were sacrified on the altar of pure financial gains;
professionalism in the field of private medecine in the eyes of the
plaintiff was a dead letter; it was motivated by pure ‘mercantilisme’ in
running the clinic; making money at the expense of the patients was
the sole and only concern of the plaintiff in running the clinic.”

Paragraph “(g)” is a verbatim repetition of paragraph “(e)” above.
The plaintiff has further averred that the answers given to Parliamentary Questions
has made it clear that there are only four doctors who give liposuction treatment in Mauritius
and none of the members of Parliament blame the plaintiff for the death of Mrs. N. V.. They
did not suggest or even insinuate that the Clinique du Nord was at fault in any manner
whatsoever or was responsible for her death. Moreover, the then Leader of Opposition
clearly stated that ‘il est difficile de lier la cause du décès à la liposuccion…’. However,
instead of bringing this element of the news to the fore, the defendants had deliberately
given a wrong and distorted view of the whole thing. The plaintiff contends that the
defendants knew or ought to have known of the wrong impression that the wordings under
the various paragraphs would create in the minds of the quick and cursory readers. Also,
photographs published in newspapers and the writings published thereunder are eye- catchers and people hasten to read and take note of the photographs and the writings below
them rather than reading the whole article.

In their plea, the defendants have stated that they have faithfully and in good faith
reproduced the PNQ of the Leader of the Opposition and the replies thereto at the National
Assembly in respect of the surgical operations concerning liposuction. They have further
stated that they published the proceedings of the debate relating to the said subject-matter
as they usually do for most of the PNQs, and that the impugned article has not been
disapproved by the Speaker of the National Assembly. It is their defence that they have
published faithfully and in good faith a matter of public interest.

Mrs. Neela Devi Ramtohul, Office Management Assistant at the National Assembly
has produced a certified copy of Hansard relating to the Private Notice Question of the
Leader of the Opposition.

Mrs. Kiran Boykunt, receptionist at Clinique du Nord, has explained that she was
working at the front desk on the material date when a lady introducing herself as Mrs. Sunita
Beejadhur, journalist at Le Mauricien, and without any authorisation took some photographs
of the clinic.

Dr. Mukesh Sooknundun, deponed as the plaintiff’s representative. He explained
how what was initially the family bungalow was converted into a clinic and how the several
departments of the clinic evolved over the years. With regard to the material date, he stated
that he was informed by the secretary that a lady from Le Mauricien asked permission to
take some photographs of the clinic but he denied authorisation as ‘Le Mauricien’ newspaper
has been systematically attacking the Clinique du Nord through its publications.

Dr. Sooknundun further stated that he was saddened by what was printed especially
when it was being done without permission and without any interview, and the moreso that
they were mainly false and malicious remarks. He explained that what is most striking is the
way the Clinic had been attacked; the photos were taken in the morning without permission,
the matter was being debated on the same day in parliament and in the early afternoon the
false allegations denigrating the clinic were published. On the whole, he purported to
substantiate the averments in the plaint. He has also relied on the alleged striking fall in the
number of outpatients as well as of inpatients following the publication of the impugned
articles.

The defence did not adduce any evidence at the hearing, as it is entitled to. It is not
disputed that defendant No. 3 was the Editor in Chief of defendant No. 1.
Defamation is an illiicit act. The ‘faute’ of the author being presumed, it is sufficient
for the plaintiff in an action founded upon an allegation or imputation to show that he has
suffered injury as a result of the defamation. “…………… in cases where there are prejudicial
allegations and imputations of fact, there is a presumption that the publication has been
made with malice” (vide La Sentinelle Ltee & Ors v V K Bunwaree [2013 SCJ 502]). It is
then incumbent on the defendant to rebut such presumption to disprove the existence of a
‘faute’. It is trite law that the principles of the French Law of tort as applied in Mauritius
should be resorted to. Consequently, the broad principle embodied in article 1382 of the
Civil Code, “tout fait quelconque de l’homme, qui cause à autrui un dommage, oblige
celui par la faute duquel il est arrivé, à le réparer”, will apply in a civil action for damages
in a case of defamation.

The plaintiff has complained that the article in two parts which has been published on
the 17th November 2011, in the daily newspaper “Le Mauricien” was greatly injurious to the
character, credit and/or reputation of the plaintiff.

The plaintiff’s representative has also admitted that his ‘mise au point’ was published
by the defendant No. 1 on the 22nd November 2011, but says that it was in small characters.
The defendants have denied the averments of the plaint and have averred that they
have faithfully and in good faith reproduced the PNQ of the Leader of Opposition and the
replies thereto in respect of the surgical operations concerning liposuction at the National
Assembly. They have however, submitted that the only relevant inaccuracy is the first
annotation and that this should not be held against them in asmuch as the main thrust of the
article is correct.

Dalloz Répertoire Pratique Vo-Presse-Outrage-Publication Note 720, referred by
counsel for the plaintiff reads:
“la communication de la pensée peut avoir lieu non seulement par l’écriture, mais par
le dessin qui exprime, non l’idée formulée par la parole, mais l’image conçue par l’esprit. La
publicité du dessin est soumise aux memes regles que la publicite de l’ecriture, relativement
aux delits de presse, prévue par l’article 28 de la loi 1881, qui peuvent etre commis par ce
genre de publication. Toutefois les délits de provocation reprimés par les articles 23, 24 et
25 ne se commettent pas à l’aide du dessin – L’article 28 est textuellement applicable aux
«dessins, gravures, peintures, emblemes ou images». Par ces mots, la loi embrasse tous
les produits de l’art du dessin ou de l’imagerie, quel que soit le procédé employé et quelle
que soit la matière sur laquelle est reproduit le dessin ou l’image. Ils comprennent, sans
contestation, les lithographies, et meme les photographies”.

I have gone through the submissions of both parties in the light of the pleadings and
the relevant evidence and authorities.

The defendants have in this case submitted that the remarks made were of a general
nature and as such cannot form the basis of an action for defamation in that the impugned
article makes reference to 4 clinics including the plaintiff’s and that at no point in time does
the article direct any of those remarks against the plaintiff specifically. They referred to
Gatley on Libel and Slander, 11th Edition, pages 219-221, note 7.9 “the civil law of
defamation does not allow an individual to sue in respect of words directed only at a group”,
and to Gatley on Libel and Slander 9th Edition at Sect 3 para 7.8, “…there is no special
rule about ‘class libel’, it is simply a question of whether a reasonable reader could conclude
that the plaintiff as an individual was pointed at ……”. It is obvious that the above extracts
that is being relied upon by the defendants from Gatley on Libel and Slander are not
relevant to the present matter, as the words were clearly not confined to a group but the
plaintiff’s clinic was being clearly pointed at.

In Bunwaree V K v La Sentinelle & 2 Ors [2012 SCJ 84], the Court, while referring
to J R Dayal v G Ahnee and Ors [2002 SCJ 303] stated:- “in such a situation like the
present one which concerns the publication of a newspaper article, it is natural and proper to
look for the meaning conveyed to the readers by considering the publication as a whole and
for that purpose including its headline or title. It would be contrary to the law of libel for a
plaintiff to sever, and rely on any isolated defamatory passage in an article (Charleston v
News Group Newspapers [1995 2 AER 313])”, and held that the impugned article should
be looked at as a whole, including its headline and title, and it is also necessary to take into
consideration, not only the actual words published but the context in which they were
published.

In the present case, the plaintiff avers that the illegally obtained photographs of the
clinic accompanied by the unverified statements with the inappropriate headlines and titles
are prejudicial and defamatory.

In Bunwaree (2012) (supra), an attempt to define a defamatory statement, reveals
that: “There is no wholly satisfactory definition of a defamatory imputation. Three formulae
have been particularly influential: (1) would the imputation tend to ‘lower the plaintiff in the
estimation of right-thinking members of society generally?”; (2) would the imputation tend to
cause others to shun or avoid the claimant?; (3) would the words tend to expose the
claimant to ‘hatred, contempt or ridicule’?”

Both French and English case law propound that to succeed in an action for
defamation a plaintiff must prove that he is the person referred to and defamed. The
defamatory words may directly refer to the person or may by extension refer to him. In
Responsabilité Civile et Pénale de Média by Emmanuelle Dreillere at para. 194, «Cela
étant dit, la diffamation reste une atteinte personnelle; la diffamation visant une personne ne
peut rejaillir sur une autre que dans la mesure ou les imputations diffamatoires lui sont
étendues, fut-ce de manière déguisée ou dubitative, ou par voie d’insinuation…».

Referring to what has already been stated above, to the effect that the article should
be viewed as a whole, and taking into consideration that only the photograph of the plaintiff’s
clinic was published with the headlines and title together with the unverified incorrect and
untrue statements underneath the photograph that two liposuction patients died at the clinic,
it is not disputed at all that the direct allegations are against the plaintiff’s clinic. What
remains to be decided also, is whether the defendants made a faithful reproduction of the
debates in the National Assembly.

In Lesage v Mason [1976 MR 172], it was held that “a prejudicial allegation or
imputation of fact is always presumed to have been made with malice (intention de nuire or
intention coupable). The author is, consequently, presumed to be guilty of a faute”. In order
to thrash out such issue, it is necessary to determine whether the defendants have been
able to prove their ‘bonne foi’. The Cour de Cassation 2e Civ. on 14 mars 2002, held that
‘La bonne foi se caractérise par la prudence dans l’expression de la pensée, le respect du
devoir d’enquête préalable, l’absence d’animosité personnelle envers le diffamé et l’intention
de poursuivre un but légitime’ (emphasis added).

What the defendants choose to call an inaccuracy is fundamental and it is false to
say, as appears from the body of the article at pages 6 and 7, that Mrs N. V. died at the
Clinique du Nord and the two captions under the photographs coupled with the title at the
front page “PNQ: Le mercantilisme médical mis à l’index” read together or separately would
convey in their totality several of the meanings suggested by the plaintiff, to the ordinary
reasonable reader, most of those at paragraphs (a) to (f) at pages 2 and 3 above.

In the light of the above legal principles, and of the evidence adduced and
considered above, I consequently hold that the defendants’ plea of a faithful reproduction of
the debates at the National Assembly fails in that they have, in presumed and unrebutted
bad faith, reported facts which are not true under the photographs when what is narrated in
the body of the article proves the footage of the photographs to be untrue regarding the
place of the two deaths which occured at the Victoria Hospital, albeit following the liposuction
treatments by the deceaseds’ own doctors at the plaintiff’s Clinique du Nord. The articles
had also been unfairly and hastily published on the very date of the debates on the subject
at the National Assembly without proper enquiry, and occulting the then Leader of the
Opposition’s observation that it was difficult to establish any nexus between the liposuction
and the cause of the deaths. The defendants are therefore at fault and are liable to pay
damages to the plaintiff.

In considering the quantum of damages, it is a fact that the headlines and unverified
statements are highly defamatory. There was also a hasty, factually incorrect, misreporting
of the essence of the tenor of what was said at the National Assembly. It is however, noted
that a ‘mise au point’ was published by the defendant No. 1 on the 22nd November 2011,
though such apologies were published in very small characters. I also take into
consideration the decrease in the number of inpatients and outpatients at the Clinique du
Nord following the publication of such article, although such decrease was only for the period
December 2011 to June 2012, and not totally clearly probably resulting from the impugned
articles.

I consider damages in the sum of Rs 300,000 to be fair and reasonable, having
regard to all the circumstances of the case. I therefore give judgment for the plaintiff against
all three defendants jointly and in solido in such sum, together with interest at the legal rate
as from 23 December 2011 (date on which the plaint was lodged) until final payment. With
costs.

A. Hamuth
Judge
06 April 2018

For Plaintiff : Mrs S.B. Jaddoo, Attorney-at-Law
Mr Y. Mohamed, SC together with Mr A.R. Jaddoo, of Counsel

For Defendants : Mrs J. Robert, Attorney-at-Law
Mr G. Ithier, SC

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