Seaga v. Harper (Jamaica)  UKPC 9 (30 January 2008)
Privy Council Appeal No 90 of 2006
Edward Seaga Appellant
Leslie Harper Respondent
THE COURT OF APPEAL OF
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JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL
Delivered the 30th January 2008
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Present at the hearing:-
Lord Scott of Foscote
Lord Walker of Gestingthorpe
Lord Neuberger of Abbotsbury
Sir Henry Brooke
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[Delivered by Lord Carswell]
"Part of the strategy is to get rid of the present Commissioner of Police, and to put in place someone whose credentials as a PNP activist are impeccable, reliable, solidly supported - a distinguished supporter of the PNP. The only difference being that he is in uniform.
Mr. Harper who is considered to be the person to replace Trevor McMillan is someone who we cannot and never will be able to support, because it is re-creating the conditions of 1993 when a similar type of Commissioner was in the post who did everything to turn a blind eye in that election."
The speech was published widely throughout Jamaica in the press and on television and radio. As the appellant accepted in his answer to the 13th interrogatory administered to him, he knew when he made the speech that the media representatives were present. In his answer to the 11th interrogatory he said that it was his duty as Leader of the Parliamentary Opposition "to communicate directly with the people of this island" his party's objection to the respondent becoming Commissioner of Police. In the course of his evidence the appellant said (Record, p 115) that his intention was to perform his duty as Leader of the Opposition and "to inform the country of the danger of appointing Mr Harper as Commissioner of Police."
"The integrity, impartiality and independence from political influence of the police force, particularly its leadership and the conduct of the Plaintiff, a senior police officer and one of its leaders as also the importance to the holding of free and fair elections under the Constitution of vigilant and impartial enforcement of the law by the leadership of the police force including the Plaintiff, are matters of general public interest upon which the Defendant, as a Member of Parliament, Leader of the Opposition and Leader of the Jamaica Labour Party, had an interest or duty in making communication to the general public and on which members of the public had a corresponding interest in receiving communication."
In addition to his answer to the eleventh interrogatory, the appellant said in paragraph 9 of his written witness statement:
"As Leader of the Opposition I considered it my duty to tell the people of Jamaica of my fears in that regard [viz that the respondent was a strong supporter of the PNP], and I had every reason to believe that the people of this country were interested in receiving that information."
He repeated this averment in his oral evidence, when he said in cross-examination (Record, p 115):
"My intention was to perform my duty of Leader of the Opposition and to inform the country of the danger of appointing Mr Harper as Commissioner of Police …"
It is in their Lordships' view clear that the appellant knew and intended at the time of publication that his words should receive such wide publicity.
"From the broad general principle that certain communications should be protected by qualified privilege 'in the general interest of society', the courts have developed the concept that there must exist between the publisher and the publishee some duty or interest in the making of the communication."
"(1) The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
(2) The nature of the information, and the extent to which the subject matter is a matter of public concern.
(3) The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
(4) The steps taken to verify the information.
(5) The status of the information. The allegation may have already been the subject of an investigation which commands respect.
(6) The urgency of the matter. News is often a perishable commodity.
(7) Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
(8) Whether the article contained the gist of the plaintiff's side of the story.
(9) The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
(10) The circumstances of the publication, including the timing."
"The scenario in which Mr. Seaga made his comments, that is, at a hotel, at a meeting open to the public and attended by the news media raises the question of the type of publication that it was. It is my view that in this context the publication is to the world at large. The national coverage afforded by media with island-wide circulation takes the occasion of this communication out of the realm of communication between persons in a specific relationship.
Mr. Seaga was no longer speaking just to members of his party or to members of the public who had attended the meeting; he was addressing through the media, at least an island-wide audience.
In this context it may be that a special approach is required (see Kearns & others v General Council of the Bar  2 All ER 534. This approach is outlined in the case of Reynolds vs. Times Newspaper Ltd.  4 All ER 609.
The Reynolds case dealt with a publication by a newspaper. In the Kearns case Simon Brown L.J. at p 536 asserted that the Reynolds case applies only to media publications. I find however, that the Reynolds case does apply to the instant case bearing in mind the presence in the audience of the media and Mr. Seaga's realized expectation that his utterances were more than likely to be quoted to the public by the media."
In the Court of Appeal Harrison P and Smith JA held that the Reynolds principles could only apply to publications by the media. McCalla JA held that the judge was not correct in applying those principles, because publication by the media ought not to have been attributed to him. For the reasons which they have given, their Lordships consider that the Reynolds approach did apply to the present case, and that the judge was right and the Court of Appeal incorrect in this respect.
(a) the information brought to him did not rise above mere rumour;
(b) as he was unaware of the sources of the information the court was prevented by that lack of knowledge from determining whether or not they were reliable sources;
(c) merely to rely on the conclusions of the thought processes of other people without demonstrating the validity of those conclusions was "inadequate at best";
(d) the matter was not so urgent that it could not await a sitting of the House of Representatives, since Mr Seaga was unhappy with the other official channels.
The Court of Appeal agreed with the judge that Mr Seaga had not shown the requisite care to found qualified privilege. They so held on the basis that the Reynolds principles did not apply, but that the quality of the information was such that the appellant did not have a duty to report it to the public.