berthahenson

An editor’s confession (added)

In News Reports on April 25, 2019 at 2:42 am

A lawyer passed me some information after I wrote this post, which I thought I should share so that readers will have a more complete picture of what happened. Essentially, it is about the contents of a Court of Appeal judgement that revealed  the people who authorised the release of the police report to the media, and how re-publication in the media affects the quantum of damages. 

I am adding this so that more facts are surfaced and fewer “spins” about the event can be effected. See the bolded parts. I have also appended the relevant parts of that judgment. 

I love reading books by journalists about their career in journalism. I look to them for inspiration and insights. I have just finished reading Alan Rusbridger’s Breaking News – The Remaking of Journalism and Why it matters now. He’s the ex-editor of The Guardian, which published the Snowden Files in 2013.

I am now reading Jill Abramson’s Merchants of Truth, an ambitious overview of the developments in The New York Times and Washington Post as internet upstarts Buzzfeed and Vice started biting into reader’s time. She’s the ex-editor of NYT.

When Mr Cheong Yip Seng, the former editor-in-chief of the Singapore Press Holdings English and Malay language news division,  wrote his OB Markers – My Straits Times story in 2012, I read it from start to end in more or less one sitting. He told stories that I thought journalists would take to their graves. Of phone calls and Istana meetings and dossiers compiled on so-called editorial transgressions. There was so much on the behind-the-scenes relationship between the G and the media. You can read my review here.

Mr Cheong was careful to characterize the relationship as a negotiation, rather than a master-slave relationship, although he was also clear about who had the upper hand. He ended on a positive note, perhaps too optimistically, that the media would be allowed to operate with less control under a political leadership which understood the demands and desires of an educated population plugged into the global information network. Note that he wrote the book in 2012.

Now I am looking forward to reading Mr P N Balji’s The Reluctant Editor, which will be out in June. The veteran journalist who has edited newspapers in both the SPH and Mediacorp stable has promised nuggets of information that had been kept from the public eye. He’s been giving interviews about his book including this one to Yahoo!

He told Yahoo that Mr Cheong’s OB Markers was his inspiration.  “It was the first book written by an established editor from SPH which actually said that there was government intervention, and he gave some examples,” he said. It annoyed the G to a great extent, he said, “because now it cannot tell people that we don’t intervene in the media”.

He added that if he could “bring some some more stories, expand on what Cheong Yip Seng has said, I think it would lead to a greater understanding of Singapore media and its interactions with the Singapore government”.

I think it’s very courageous of him to do so. I am less courageous.

A few months ago, he told my class of National University of Singapore undergraduates doing a module on Media Ethics about what transpired behind the scenes during the 1997 General Election, when The New Paper ran a front page story about Workers’ Party politicians Tang Liang Hong and JB Jeyaratnam filing police reports against People’s Action Party ministers. This incident was going to be in his book, he said. He was the editor then and I was his deputy.

I had suggested Chatham House rules, but Balji waved them away. Anybody was free to write anything.

It was another one of those stories that I thought journalists, at least the handful of us privy to it, would take to their graves. And no, it is not about the Toh Chin Chye saga in 1996, which was how I ended up being transferred from The Straits Times to TNP. Balji has said much about this boo-boo, which had led to front page apologies in every single SPH newspaper for a week. You can read about some of it here although I am sure there are more juicy details in his book.

First, some background: The 1997 GE was notable for the Tang Liang Hong affair. Mr Tang, now a fugitive in exile, had thrown his lot in with the Workers Party and stood for election, alongside the late J B Jeyaretnam, in Cheng San GRC. The PAP attacked Mr Tang  as anti-Christian Chinese chauvinist and clearly did not want to see the WP slate anywhere near Parliament. Several PAP leaders fired broadsides at him.

The day before Polling Day (there was no Cooling Off day at that time), the WP held a rally which ended dramatically with Mr Jeyaretnam holding up a few pieces of paper in his hand. He said that police reports had been filed against 11 members of the PAP. He left it at that.

So everyone was all agog about the contents of the police report. Unless Mr Jeyaretnam handed them over to the media himself, there was no way journalists could have obtained them from other sources. The police do not release police reports on request.

Yet in the early hours of the next morning on Polling Day, Balji said he received a telephone call suggesting that he obtain the police reports from Central Police Station. Ask and you shall be given. This was a strange offer of a scoop offered to TNP, a newspaper which at that time was sold at lunch-time. (Afternote: Balji has since told me the phone call was from Cheong, our editor-in-chief at that time.) 

Balji admits that the idea of a scoop stirred journalistic passions. Which editor would not welcome the chance to get one step ahead of its rivals, especially the broadsheet Straits Times, which had already gone to print by then? I was Balji’s deputy at that time, and actually called the cops for the reports. They said no. So, Balji made a telephone call and this time, we were told to wait by the facsimile machine. The clock was ticking away and we had already held the presses. So many of us crowded around the machine that morning to watch copies of the report slowly make their way into our presence. We printed them whole-sale on Page 1.

If Cooling Off Day was in place then, we would have breached so many rules and were at risk of libeling 11 people. To cut a long story short, we did not get into trouble, but Mr Tang and JBJ et al did. They didn’t win the election but did well enough to earn a non-constituency MP seat which JBJ took. But more importantly, JBJ was smacked with a massive law suit, 11 in all. That was when it began to dawn on us that we had been made use of to disseminate a supposed libel to an even wider audience, which could mean higher damages if the PAP side won.

The next event in this  saga was the court case which meted out what former Prime Minister Goh Chok Tong described as a “derisory’’ $20,000 in damages on JBJ for saying these words at that rally: “Mr Tang Liang Hong has just placed before me two reports he has made to the police against, you know, Mr Goh Chok Tong and his team”.

The PAP side appealed for more damages, and in July 1998, damages were upped to $100,000 plus S$20,000 in court costs.

In a November 1997 judgement that concerned a separate set of PAP law suits against Mr Tang, a Court of Appeal comprising Justices M Karthigesu, L P Thean and G P Selvam noted  that Mr Tang was not responsible for giving the media copies of the police reports, which would have compounded his libel. PAP lawyers had told the judges when it came to assessing damages that they were instead released by then Prime Minister Goh Chok Tong and the late PM Lee Kuan Yew.

The judges said: “They (the PAP lawyers) would have offered the court all the relevant facts, but it did not occur to them at the time, as the matter was never raised. We accept their explanation. It is quite clear that the oversight was unintentional.” 

As for the PAP’s act of making public the police reports, the court said:  “It seems to us that it was a matter of political exigency to the PAP leaders that the reports should be made public to neutralise whatever effect Mr Tang sought to make out of them so that the voters could make their choice on an informed basis.” 

Since neither Mr Tang (nor JBJ) had made public the reports, he can’t be responsible for the dissemination of the contents. The judges lowered the damages for the PAP leaders who had cited the police reports as aggravating factors in their suit against Mr Tang. 

But as far as the JBJ court case was concerned, he had still defamed the PAP leaders by his announcement that police reports had been made.  On appeal, the court awarded PM Goh $100,000 in damages in July 1998, citing among other factors how the earlier $20,000 award was “disconsonant” with past defamation cases.  

The other 10 PAP leaders got onto the bandwagon later. But in April 2002, after Mr JBJ apologised to them, they accepted his apology and waived damages and cost.  

There was no way JBJ could have paid them anything anyway. He had been declared a bankrupt the year before (he couldn’t pay damages for another law suit) and consequently had to quit his  NCMP post. 

All this time, Balji said, he wondered if he would be called to the stand by the defence to declare how he had obtained the reports. But JBJ’s lawyers didn’t summon him. Nobody talked about the content of the reports; just its announcement.

Some 20 years have passed since and the event still grated on him. It grated on me too. I was in court for the trial to do a “watching’’ brief, in case the newsroom was implicated in some way. It was an ache that I have carried all these years. Balji said the book gave him a chance to finally get it off his chest. Like some form of atonement.

Playing it back, I wondered if we could have said no. Our journalistic instincts, scoop mentality and deadline pressure overwhelmed our ethics. We wanted to be first with the story. But we found that the fleeting euphoria was nothing compared to the stone that had been lodged in our hearts since.

You can read it in greater detail in Balji’s book. I recall a review Balji wrote about another ex-editor’s book, Mano Sabnani’s Marbles, Mayhem and My Typewriter published in 2017, which he had described as a “let down’’. Mr Sabnani was brief when he could have been more expansive about the run-ins he had with the G, especially during Mr Sabnani’s three-year editorship of TODAY.

“That in itself is a sad indictment of the Singapore journalism story where many editors take their tales to their graves. Some, like Sabnani, have bucked the trend but are still only prepared to tell an incomplete story and leave readers wanting more. Isn’t our journalism also like that, leaving many to wonder if the bottle is half full or half empty?’’

Balji isn’t taking much to his grave.

I actually wrote most of this column right after Balji gave his talk but I balked at publishing it. I was worried about affecting his impending book publication and was too much of a coward to print the truth. I thought it best to wait till his book was out.

Why have I changed my mind? Because at this time when the national discussion is about the publication of truth and falsehoods and with an important Bill up for debate this month, I thought more people might like to have a better understanding about the relationship between the G and the media.

And before you ask, I’m still thinking about it.

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From Singapore Law Report

Tang Liang Hong v Lee Kuan Yew and another and other appeals [1997] 3 SLR(R) 576; [1997] SGCA 52

Republications by the media

We turn next to the claim for damages occasioned by the republications of the police report by the media; the report appeared in the various newspapers, including The New Paper, The Straits Times and theLianhe Zaobao. The Lianhe Zaobao article was also made available on the Internet through the Lianhe Zaobao Online Home Page AsiaOne which was accessible to worldwide users.

All the plaintiffs in their respective statements of claim averred, in substance, that in making the police report MrTang intended the republications of the report by the media or that the republications by the media were the natural and probable consequence of his report. Thus, all three of them attributed to Mr Tang the republications of the police report by the media.

In fact, what had transpired was that on the eve of the polling day Mr Tang made two police reports, and at the WP rally in the evening of the same day Mr Jeyaretnam, who was the running mate of Mr Tang in Cheng San GRC, at the instance of Mr Tang announced that Mr Tang had lodged two police reports against the PAP leaders. But, Mr Jeyaretnam did not repeat the content of either of the police reports to the crowd. It is accepted that subsequently Mr Goh obtained a copy each of the police reports and authorised Mr Lee to release them, and they were released to the media by Mr Lee’s press secretary. Hence, on the basis of these facts Mr Gray argues that Mr Tang was not responsible for the republications and no damages should be awarded for such republications.

As we have narrated, two police reports were made by Mr Tang but only one of them gave rise to the claims by the three plaintiffs in the three actions respectively, and it was not claimed that the other report was defamatory. Hence, for the purpose of this appeal, we are concerned only with the offending report that gave rise to the three actions.

Before us, counsel for BG Lee, Dr Tan and Mr Lee Yock Suan respectively submit that the republications of the police reports by the media were the natural and probable consequence of Mr Tang’s original publication to the police. The thrust of their contention is that Mr Goh and Mr Lee had to release the reports to the press, and the release was necessary to avoid any erroneous public impression that there was something to hide. Mr Jeyaretnam had, after all, on the urging by Mr Tang, announced the lodging of the police reports. Hence, the police reports had to be released to the media “to contain the harm”, and to defend themselves (that is, the PAP leaders), it was decided that the public should know what had been alleged by MrTang. Thus, the republications flowed from MrTang’s original publication. Alternatively, it is argued that since Mr Tang had made the reports in those circumstances and having indicated at the rally that he made the police reports, he must also have intended the republications.

As we see it, the police reports were lodged by Mr Tang on the eve of polling day, and the purpose was apparently to boost his electoral chances. It seems to us that it was a matter of political exigency to the PAP leaders that the reports should be made public to neutralise whatever effect Mr Tang sought to make out of them so that the voters could make their choice on an informed basis. Of course, Mr Tang must have known that the press and public would be interested in knowing what allegations had been levelled at Mr Goh, Mr Lee and the other PAP leaders. He also must have known that the media would try to obtain a copy each of the police reports. However, it does not follow that by reason of this, the republications of the contents of the reports were the “natural and probable consequence” of his original publication to the police. Nor can it be said that by acting in the way he did he intended the republications by the media.

We find the decision of Hallett J in McWhirter v Manning The Times (30 October 1954) of some assistance here. In that case the plaintiff sued Mr Manning and others for defamation in respect of a speech made by Mr Manning at an annual meeting of the National Union of Journalists which was subsequently published. It was held that Mr Manning was only liable for the slander, and not for the libel occasioned by the publication. It was reported as follows:

 

His Lordship, giving judgment, said that on the issue of libel it was argued that, because Mr Manning knew that there were reporters at the meeting and that a report of what he said might and probably would appear in the printed report, he must be taken as having caused the publication of the defamatory words in the report.

His Lordship referred to the authorities, and said that, on the facts, it was plain that once the words had flown out of Mr Manning’s mouth he did nothing further whatever to procure publication of those words, or some or any of them, in a printed form. From then onwards it was other people who got them into print. There was no evidence which warranted a finding that the first defendant published the libel as distinct from publishing the slander, and he (his Lordship) so held. It followed that the first defendant was not liable in respect of the libel.

It was further reported that the learned judge held as follows:

But in the present case the printers were not employed by the first defendant. If one asked the question, ‘Was Manning the cause or a cause of the libel being published?’ the answer seemed to be No. He was a causa sine qua non in the sense that if he had never made the speech there would have been no speech to report; but he was certainly not the causa causans and did not cause the publication of the libel. The responsibility for producing the libel was quite clearly on the union and the printers whom they employed, and there was no case against the printers.

The fact remains that Mr Tang never procured the republication of his police reports, apart from asking Mr Jeyaretnam to announce to the crowd at the rally that he had lodged two police reports against the PAP leaders. At the highest, and this is purely speculative, it might be said that Mr Tang intended the content of the police report to be released to the media by the police since he had filed the report with the latter. But, since Mr Goh and Mr Lee had obtained a copy each of the reports and authorised their release to the press on their own volition, it cannot be said that in those circumstances the republications were the natural and probable consequence of the original publication. Nor can it be said that Mr Tang intended the republication of the reports by the media.

In assessing the damages in these three cases, Chao Hick Tin J held at [46] of his judgment ([5] supra):

The police report was released to the media through the Secretary General of the WP at a rally that evening and it was carried in the media on 2 and 3 January 1997. Mr Tang knew and intended that the report would be so published.

 

In all probability, the learned judge reached the above conclusion on the basis of the statements of claim. Counsel for all three respondents in these actions, as well as counsel for Mr Lee and Mr Goh, were quick to inform this court that at the time of the assessment of damages before the learned judge, they did not deliberately suppress the fact concerning who released the police reports to the media. They would have offered the court all the relevant facts, but it did not occur to them at the time, as the matter was never raised. We accept their explanation. It is quite clear that the oversight was unintentional.

In our opinion, as MrTang was not responsible for the republications, it must follow that the damage occasioned by the republications of the police report in question by the media cannot be attributed to Mr Tang. This is a very material fact in the assessment of damages. A useful case which illustrates this point is Gorman v MuddTranscript No 1076 of 1992 (15 October 1992) referred to in the judgment of Sir Thomas Bingham MR in John v MGN Ltd ([120] supra). In that case, the plaintiff was a member of Parliament and she sued one of her constituents for a libel contained in a mock press release. The publication was made only to 91 people, but they were “prominent, influential, local and knowledgeable members of the constituency party”. The defendant pleaded justification and persisted in this defence. The plaintiff alleged express malice. The jury rejected the defence of justification and found express malice on the part of the defendant. They awarded damages in the sum of £150,000. On appeal the Court of Appeal held that the award was grossly excessive and in exercise of its power reduced the amount to £50,000. One of the factors that played a part in the reduction of damages was the limited audience. Russell LJ in his judgment said, at 12 of the transcript:

A very important consideration must always be the extent of publication and in my view this case is not to be compared with a libel appearing in a national newspaper. It is a fact of life that many people believe everything they read in newspapers, so that defamatory material can attract a very wide audience in a particular damaging way for the victim.

There is also an old local case bearing on the same point which is of some assistance: Tan Chee Kong v Lee Ee Liat [1949] MLJ 277. There, the defendant sent a letter by post to the plaintiff, and outside the envelope he inserted the words “Ex-Informer – Kempeitai” just after the name of the plaintiff. The latter sued the defendant for damages for libel and it was held that the words were defamatory of him. A point was raised by the defendant that there was no publication as the postal employees were sworn to secrecy. Taylor J who heard the case rejected this argument, but held that since the publication was limited to the postal employees, it materially reduced the damages. He said, at 278:

Though there was publication it was limited in extent and the matter is much less serious than publication in a newspaper or in any other form which would ordinarily reach a large number of people on whom no obligation of secrecy rested. This materially reduces the damages.

 

Reverting to these cases before us, we think the circulation of the report was very limited. The report was published to a few police officers at most, and there was certainly no evidence of a wide circulation of the reports even among the officers. In view of this, the amounts awarded below obviously cannot stand and must be considerably reduced.

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