PRIME MINISTER'S LAWYER ISSUES THREAT TO SUE ME FOR DEFAMATION
by BRYAN KRAMER
I received a report that the Prime Minister’s Lawyer Ms Tiffany Twivey has issued a threat to sue myself and the Administrators of PNG News over the publication of my last article headlined: So PM's Lawyer Claims Fraud Squad are Rogue Cops; Politically Motivated?
Ms Twivey emailed the administrators of PNG News, claiming my article was just a ridiculous lie about her and extremely defamatory. She also went further to state she is going to sue me and every single admin on PNG News for defamation and also complain to the police for us to be charged criminally for defamation and harassment unless we remove all lies and defamatory statements about her.
To support her claims Ms Twivey noted three main grounds:
1) She said nothing, posted nothing in no media medium. She hasn't even issued anything, she is not even on Facebook any more.
2) That I said Mr Hamou should get a more reputable and competent lawyer to replace her.
3) That I said that she signed a consent order with another lawyer to set aside Vele’s warrant - "I did no such thing. Vele’s arrest warrant is very much alive," she said.
Ms Twivey also noted that Mr Aloysis Hamou has already issued instructions for her to sue me for defamation over my post, reporting on his arrest by the Fraud Squad.
So let’s see if Ms Twivey’s grounds have any merits (or are misconceived).
Google defines defamation as: a false statement that injures a person's reputation. Defamation includes both spoken words (slander) or written statements (libel).
In PNG, the Defamation Act 1962, is an Act (law) of Parliament that provides protection to individuals or entities against defamation. However it also provides for the protection for persons against being sued for defamation where the publication is protected, justified, or excused by law.
So what constitutes defamation and what protects against it?
In summary, to prove defamation you have to show:
1) a statement was published,
2) that the statement injured a person's reputation, and
3) that the publication was not protected by law.
To establish something is published, it must be made known to a third party. One can't argue their reputation has been injured if noone else is made aware of the defamatory comment made against them. A third party can be anybody, a person who witnesses or overhears the defamatory statements, or a typist who is instructed to type a defamatory letter on behalf of her boss, or a receptionist who reads a defamatory letter after opening the mail intended for a person in the company. So, if you defame someone but you are the only two people in the room, or speaking over the phone, then you can't be sued for defamation. The same applies if you write a defamatory letter to someone and personally deliver it to him or her without anyone else reading it.
Supreme Court in the case Lambu vs Torato (2008) held the view that to sustain a cause of action for defamation, the following elements (key facts) must be proven:
1) the defendant made a defamatory imputation against the plaintiff (a statement was made that did in fact injure a person’s reputation);
2) the defendant published it;
3) the publication was unlawful (i.e. not protected, justified or excused by law).
So when is a person protected by law against defamation?
There are five general grounds under the Defamation Act that provide protection to a person from being found guilty of defamation.
1) Official Reports (section 7)
2) Reporting on Matters of Public Interest (section 8)
3) Fair Comment (section 9)
4) Truth (section 10)
5) Qualified Excuse (section 11)
So, what constitutes protection under official reports?
Section 7 of the Defamation Act states it relates to a person making a defamatory statement during the course of court proceedings (giving evidence); or an inquiry, Commission of Inquiry (COI) ordered by Parliament. So, if you are called to give evidence during an official tribunal and you make statements that demean a person’s reputation in the course of such proceedings, you are protected from being sued for defamation.
What constitutes protection under reporting on matters of public interest?
Section 8 of the Defamation Act states a person is protected for publishing defamatory statements provided it was a fair report in good faith on matters of public interest. Matters of public interest may include conduct of a person who takes part in public affairs; or the conduct of a public officer or public servant in the discharge of his public functions; or the merits of a case, civil or criminal, that has been decided by a court. It may also include reporting on proceedings, of Parliament, COI, Court of Law, Leadership Tribunals, public meetings etc.
A key element to establish that a publication is made in good faith for the information of the public is if it was not made in ill-will or improper motive to deliberately defame a person, and if the manner of the publication is such as is ordinarily and fairly used in the publication of news.
What constitutes protection under fair comment?
Section 9 of the Act provides fair comment or honest opinion to be the publication of a fair report in good faith for the information of the public. The Supreme Court held that "to qualify as a fair comment, a statement must have some purported factual basis, which is true; the rationale being that if a reasonable, unprejudiced reader is given the opportunity to form his or her own judgment on whether the comment is justified, the force of the defamatory statement is neutralized."
However it falls outside fair comment if the statement was made maliciously -- i.e., if the plaintiff can show that it was not made with a reasonable purpose or with reasonable cause, or that the speaker made the statement knowing it was false, or with a reckless disregard for the truth -- it will not be protected by law as fair comment.
What constitutes protection under truth?
Section 10 of the Defamation Act provides it is lawful to publish defamatory matter if it is true, and if it is for the public benefit that the publication complained of should be made. People cannot be punished for speaking the truth, no matter how ugly it may be. Truth is always a defense to a claim of defamation. If you are going to rely on Section 10, protection under the truth then you must prove to the Court that the defamatory matter is true and secondly it was for the public benefit that publication should be made.
What constitutes protection under qualified excuse?
This is provided for under Section 11 of the Defamation Act and relates to publication made in good faith by a person who has lawful authority (example judge) or made to protect a person’s interests or public good (for example in the interest of public safety). Whether or not a publication qualifies as made in good faith is: whether it was relevant, was not unreasonable, or excessive. Further that it was not made in ill-will to the person defamed, or by any other improper motive; and it was made believing it to be untrue.
So what is the penalty for being found guilty of Defamation?
Section 18 of Defamation Act states a person who unlawfully publishes defamatory matter concerning another is guilty of an offence. Penalty: a fine not exceeding K600.00 or imprisonment for a term not exceeding 12 months, or both. However where an offender knows the defamatory matter to be false, he is liable to a fine not exceeding K1,000.00 or imprisonment for a term not exceeding two years, or both.
It is important to note that to-date no person has ever been imprisoned for defamation. It is considered a tort at common law (civil wrong and not criminal). It has been the practice of the court to impose a fine and a claim for damages rather than a prison sentence.
Now let’s consider the allegation made by Ms Twivey to establish whether she has a case against myself and the PNG News Administrators.
The first element that must be proven is that the defendant(s) myself and the fellow administrators did publish a defamatory statement against her. There is no question that I authored and published the article. However my fellow administrators did not. Each admin is responsible for the publication of their own articles. Therefore, it’s my view Twivey's threat to sue PNG News administrators for something they did not publish would fail to hold up in court.
Now that we have narrowed the issue down to myself and Ms Twivey, let’s review whether or not a case can be made against me. Having confirmed the second element that I did publish the article, the two remaining elements that need to be proven are whether or not the statements made in my article were defamatory against Ms Twivey and if so whether the publication was not protected by law.
To review, she has contended the statements to be defamatory imputation (accusations). Imputation is when you say someone did it, tying them to an action or cause.
So were the following statements published in my article defamatory?
Ms Twivey takes issue that my article reported that she claimed the recent arrest of Deputy Secretary of Treasury Mr. Aloysius Hamou was carried out by rogue cops though intimidation and based on political motives.
Ms Twivey says she said nothing, posted nothing in any media medium, hadn't even issued anything, and was not even on Facebook any more.
There is no dispute that Ms Merrell published such claims, so why did I claim they both did? It is public knowledge that Ms Merrell and Ms Twivey are dear friends and Ms Twivey is the source of Ms Merrell’s articles relating to high profile cases involving the Prime Minister including cases involving herself. Ms Merrell recently publicised an article in relation to the Supreme Court findings and decision to refer Ms. Twivey to the Law Society. The article titled "Twivey’s referral to Law Society founded on a wrong premise.”
Ms Merrell's article claimed the recent arrest of Deputy Secretary of Treasury Mr. Aloysius Hamou was carried out by rogue cops where she reported specific details of arrest statements made by Twivey lawyers, and details only known to Ms Twivey. Thus confirming the source of her article was Ms Twivey.
Further, when Wandul Eka commented on Ms Merrell's post noting that her analysis is misguided, she replied "my analysis is guided by people who are qualified to comment." Hence it is my view she was referring to Ms Twivey. So while Ms Twivey claims she said nothing, posted nothing in any media medium, there is sufficient evidence to draw inference that the claims made in Ms Merrell’s article originated from Ms. Twivey. It is also important to note it was Ms Twivey who also argued before the National Court, that the Prime Minister's arrest was the work of rogue policemen who were politically-motivated.
In my defense to this ground I would argue protection under Section 10 (truth) and Section 9 (fair comment).
2) I said Mr Hamou should get a more reputable and competent lawyer than Ms Twivey. I actually stated "If I was Mr. Hamou I would have serious concerns about my involvement and would be seeking services of a more reputable and competent lawyer." This statement is expressed as my opinion, and further following the ruling of the Supreme Court in relation to Ms Twivey’s conduct, I would argue it's a fair comment, seeking protection under Section 8.
Ms Twivey contends that I said she signed a consent order with another lawyer to set aside Vele’s warrant - "I did no such thing. Vele’s arrest warrant is very much alive," she said.
Correct, this report was based on Supreme Court findings. Section 8(c) of the Defamation Act states it is lawful to publish in good faith for the information of the public a fair report of the public proceedings of a court, whether the proceedings are preliminary, interlocutory or final, or of the result of any such proceedings.
In this case, I reported on the findings of the Supreme Court. I wish to note that I never stated the warrant of arrest was "permanently" set aside or no longer active.
After considering the arguments raised by Ms Twivey it’s my view that her threat to sue me is without merit. However on account she is emotionally aggrieved by my article, I have edited it to avoid any confusion. While she may still follow through on her threat to have me charged under Section 18 of the Defamation Act or under Section 266 of the National Information and Communication Technology Act (NITCA), I wish to note that last time I was wrongfully charged for attempted murder following my report on the Prime Minister's referral to the Leadership Tribunal, those involved in my arrest are liable to face criminal charges for fabricating evidence and conspiring to bring false charges, both criminal offences under the Criminal Code. I am in the process of initiating both civil and criminal proceedings against those involved.
On that note, I intend to defend my qualified right to report on corruption and misuse of public funds including the conduct of the Prime Minister and those directly associated to him without fear or favour.