By Colombo Telegraph –

The Colombo Telegraph below produced the unofficial translation of the Swedish Court of Appeal decision against the Asian Tribune Editor KT Rajasingham and the World Institute for Asian Studies. The Court of Appeal found that the Asian Tribune Editor KT Rajasingham and the World Institute for Asian Studies are liable for gross defamation of NORWAY NEWS journalist Nadarajah Sethurupan through the articles published on the Asian Tribune website. The Court of Appeal upheld the District Court’s decision to order Rajasingham and the World Institute for Asian Studies Institute to pay to NORWAY NEWS journalist Nadarajah Sethurupan SEK 125,000 (about USD 20,000) plus interest from 2 November 2005.

NORRTÄLJE TINGSRÄTT SVEA COURT OF APPEAL     DOMJUDGMENT Case No

2010-05-12 Division 01                       2012-02-24                  T 4910-10

Stockholmmeddelad i

APPEALED JUDGMENT

The Norrtälje District Court’s judgment 2010-05-12 in case No. T 356-09, see Appendix A

CLAIMANTKÄRANDE

Nadarajah Sethurupan, född 1978-05-08

11.Kanapathipillai Thambirajah Rajasingham, 400721-9514 Kanapathipillai Thambirajah Rajasingham, 400721-9514

Carl Wahrens väg 22 BCarl Wahrens väg 22 B

763 34 Hallstavik763 34 Hallstavik

2.2. World Institute for Asian Studies, 802423-1105 World Institute for Asian Studies, 802423-1105

Adress som medsvarandenSame address

Counsel for 1-2: Advocate Gunilla Dersand Holmberg

Box 78

191 24 Sollentuna

SVARANDE

COUNTERPART

Nadarajah Sethurupan, 19780508

Gransdalen 23 D

N-1054 Oslo

Norway

Ombud och biträde enligt rättshjälpslagen: advokaten Jonas Jaegerfalk

Counsel and representative under the Legal Aid Act: Advocate Niclas Carlsson

Box 590

114 11 Stockholm

______________________ ______________________

 

 

Postal address             Visiting address                  Telephone                    Facsimile                  Office hNadarajah                                                                                                        Sethurupanours

Box 2290                      Birger Jarls torg 16               08-561 670 00             08-561 670 19         Monday – Friday

103 17 Stockholm                                                       08-561 670 10                                                 09:00-15:00

                                                                                        E-mail: svea.avd1@dom.se

www.svea.se

THE COURT OF APPEAL’S RULINGSDOMSLUT

1. Tingsrätten förpliktar KT Rajasingham och World Institute for Asian Studies attThe Court of Appeal changes the District Court’s judgement as follows.

a) Nadarajah Sethurupan’s claim for the inclusion of a link to the judgment on www.asiantribune.com (item 3 in the District Court’s ruling) is dismissed.

b) 2. K. T. Rajasingham and WIAS shallskyldiga att solidariskt ersätta den rena förmögenhetsskada som Nadarajah Sethuru, jointly and severally, bear the costs for an authorized translation into English of the District Court’s and the Court of Appeal’s  judgments in this case and the printing of these judgments in a newspaper with nationwide circulation in Sri Lanka.

26..Tingsrätten fastställer ersättningen enligt rättshjälpslagen (1996:1619) till Niclas The Court of Appeal grants Niclas Carlsson compensation under the Legal Aid Act (1996:1619) in an amount of SEK 50,535.Av beloppet avser 95 426 kr arbete, 1 872 kr tidsspillan, 2 352 Out of this amount, SEK 39,765 relate to work, SEK 663 relate to loss of time and SEK 10,107 relate to VAT.

38.. KT Rajasingham och World Institute for Asian Studies skall solidariskt ersätta K.T. Rajasingham and World Institute for Asian Studies shall, jointly and severally, compensateNadarajah Sethurupans kostnad för rådgivningsavgift om 2 705 kr 50 öre samt the state and Nadarajah Sethurupan for the cost for Nadarajah Sethurupan’s legal aid kostnaden för dennes rättshjälpsbiträde med 124 562 kr enligt den fördelning somas further to be decided by the Legal Aid rättshjälpsmyndigheten bestämmer.Authority.

_________________________

CLAIMS IN THE COURT OFAPPEALBAKGRUND

Kanapathipillai Thambirajah Rajasingham (K. T. Rajasingham) and World Institute for Asian Studies (WIAS) have claimed that the Court of Appeal dismisses  Nadarajah Sethurupan och KT Rajasingham är båda från Sri Lanka.Nadarajah Sethurupan’s action and that Nadarajah Sethurupan shall be ordered to compensate them for litigation costs at the District Court.

Nadarajah Sethurupan has contested any change.

The parties have claimed compensation for litigation costs in the Court of Appeal.

THE COURT OF APPEAL’S REASONS

In the Court of Appeal the parties have invoked the same circumstances as they did in the District Court. K. T. Rajasingham and WIAS have, however, explained that they as a basis for contesting that any defamation has occurred only assert that it has been justified to disseminate the information at issue and that the information has been correct or that there in any event has been reasonable ground for the information.

The hearings of Nadarajah Sethurupan, K. T. Rajasingham and Christer de Saram Larssen have been presented in the Court of Appeal through the emission of recordings of sound and pictures from the District Court. In the Court of Appeal, additional hearings of Nadarajah Sethurupan and Christer de Saram Larssen have taken place. S. K. Ranatunga has been heard as a new witness in the court of Appeal.

Written evidence – part of it new in the Court of Appeal – has been invoked.

The statements constituting defamation

The statements invoked as constituting defamation have been compiled in Appendix 1 to the District Court’s judgment. The District Court has found that most of the statements constituted defamation.

Nadarajah Sethurupan has in the Court of Appeal asserted that all statements invoked in support of the claim for damages, that is also statement No. 3 and statement No. 14 under the heading A. Links to the LTTE and the statements under the heading D. Use of the nickname “Dirty Sethu” in the District Court’s judgment, shall be part of the assessment. In this regard, the Court of Appeal makes the following assessment.

As regards statement No. 3, Nadarajah Sethurupan has asserted that the use of the Norwegian Royal Emblem could be considered a crime and that he therefore has been designated as a criminal. Every statement comprising the notion that a person has committed a crime can, however, not constitute defamation. The statement shall serve the purpose of making the designated person the subject of other persons’ contempt. The crimes that in this context may be at issue are not of such nature. The Court of Appeal concurs with the District Court’s opinion in this part of the case. Statement No. 3 did consequently not constitute defamation.

As regards statement No. 14, the Court of Appeal makes the same assessment as the District Court. The statement did hence not constitute defamation.

When it comes to the statements under the heading D. The use of the nickname “Dirty Sethu” the Court of Appeal shares the District Court’s opinion that the statements at issue cannot be considered to constitute defamation. In this part of the case, Nadarajah Sethurupan has alternatively asserted that the statements amount to the crime insult. It has been established that Nadarajah Sethurupan through an e-mail to K. T. Rajasingham on 27 October 2007, has informed that he reads the news on Asian Tribune. Even with account taken to this, the statements at the website cannot be considered as directed at Nadarajah Sethurupan directly in the meaning of chapter 5, section 3 of the Penal Code.

In summary, these considerations mean that the Court of Appeal makes the same conclusion as the District Court as regards the question of which of the statements that constitute defamation.

The question of exclusion of liability

A person, having provided information that would otherwise constitute defamation,

may in accordance with the provision laid down in chapter 5, section 1, second paragraph of the Penal Code be excluded from liability if it has been justified to provide the information with regard to the circumstances. A condition for exclusion of liability is, however, also that the information provided has been true or that it in any event has been reasonable ground for the information.

The said provision about exclusion of liability aims at regulating the collision of interest which may arise between on one hand the interest of freedom of expression and on the other hand the individual’s need for protection against being subject to degrading information. The statutory text does not set forth what circumstances that shall be considered when assessing whether or not it has been justified to provide the information. Case law shows, inter alia, that the assessment of the question regarding whether or not it has been justified to provide the information, in principle shall be made without considering whether the information is true or not. The subject of the information as well as how clearly the person has been designated is relevant (see the case NJA 1987 s. 285 I). In the legal literature, it has been emphasized, that the freedom of expression includes the freedom to make a critical review and assess all person that voluntarily enters the public arena and ask for or receives the support or trust of the public. Such persons comprise, inter alia, politicians, certain public servants and religious officials (see Axberger, Tryckfrihetens Gränser, [The Limits of the Freedom of the Press], s. 238).

K.T. Rajasingham and WIAS are the ones having the burden of proof to show that there are such circumstances that motivate the conclusion that it has been justified to disseminate the statements at issue. They also have the burden of proof to show that the statements were true or that there has been reasonable ground for them. Based on the grouping of the information in the District Court’s judgment, the Court of Appeal makes the following considerations in this part of the case.

As regards the statements under heading A, that is statements regarding links to the LTTE, the District Court have found that it per se could be considered as justified to publish information about a person’s links to an organization which is considered to be a terrorist organization. The District Court has furthermore found that the evidence presented in the case there was far from sufficient to show that there was reasonable ground for the statements.

In the Court of Appeal, K. T. Rajasingham and the WIAS have claimed that it was justified to provide the information, since Nadarajah Sethurupan is a “public person” known in Sri Lanka as linked to the LTTE. Nadarajah Sethurupan has on the other hand claimed that he has only been active as a journalist.

S. K. Ranatunga has stated that he has heard about Nadarajah Sethurupan and that his name has appeared in the media on Sri Lanka connected to the reporting about the LTTE.

The Court of Appeal can conclude that S. K. Ranatunga’s statements are vague and that they mainly seem to be based on information from the reporting of news in Sri Lanka. His witness statement does not support the conclusion that Nadarajah Sethurupan has been a public person. Neither does the other evidence presented in the case support that conclusion.

The Court of Appeal holds, however, the opinion that it can be considered as justified to provide information which indicates that that a person who works with reporting news can be linked to a terrorist organization. For exclusion of liability, it is, however, as stated above, necessary that it is shown that the information is true or that there has been reasonable ground for it.

The statements have not been shown to be true. The question is then if there has been reasonable ground for them.

The information provided by K. T. Rajasingham in this part of the case does not mean – as the District Court have found – that there has been reasonable ground for the statements. The witness statement by S. K. Ranatunga is mainly that Nadarajah Sethurupan’s name is mentioned in media reports in Sri Lanka in connection with the LTTE. He has also claimed that Nadarajah Sethurupan has taken over a news site in Norway which is claimed to have connections with the LTTE. He has not been able to provide any information to support this claim. The information provided through the witness statement by S. K. Ranatunga cannot be considered as meaning that there has been reasonable ground for the statements assessed in this part of the case.

What has now been said means that K. T. Rajasingham and the WIAS have neither in the Court of Appeal succeeded in showing that there has been reasonable ground for the statements that Nadarajah Sethurupan has had links to the LTTE. As the District Court has found, the dissemination of statements has therefore constituted gross defamation.

When it then comes to the statements assessed in the District Court’s judgment under headings B and C, that is the statements about crimes in the UK and release on bail in Oslo, the District Court has found that it has not been justified to disseminate such statements, since Nadarajah Sethurupan is not a public person and the information provided is of no public interest. What has appeared from the proceedings in the Court of Appeal does not change that assessment. Also in these parts of the case, the statements do hence constitute gross defamation.

Who shall be held responsible for the damage caused by the defamation?

Nadarajah Sethurupan has brought his claim both against K. T. Rajasingham and against the WIAS. As regards the claim against K. T. Rajasingham, it has been asserted that he has committed crimes by publishing the statements. As regards the claim against the WIAS, Nadarajah Sethurupan has asserted that the dissemination of the defamatory statements have had such a connection to the activities of the association that the association shall be held liable for the damage that K.T. Rajasingham’s has caused by disseminating of the statements. He has further claimed that the WIAS, as principal to K.T. Rajasingham, is liable for the damage which he has caused through his wrongdoings or neglect in his service.

The District Court has found that the association in any event as principal to K. T. Rajasingham is liable for the damage, since the publishing of the articles falls within the core activities of the association.

Nadarajah Sethurupan has in his legal argumentation for liability for the association for K. T. Rajasingham’s actions referred to the case NJA 1960 s. 644. The said ruling concerned damage that employees had caused to a company with which their employer had a contractual relationship. The conclusion appearing in that case is not easily transferred to the situation at issue in this case. Neither is K. T. Rajasingham to be regarded as an employee or such an assistant that according to chapter 6, section 5 of the Tort Act shall be considered equivalent to an employee.

The Court of Appeal is, however, at liberty to apply another legal rule on the facts and circumstances invoked by Nadarajah Sethurupan in this part of the case. The Court of Appeal here notices that he among other things has based his claim on the fact that K.T. Rajasingham has performed the acts leading to liability within his service for the WIAS.

K.T. Rajasingham is the chairman of the committee that governs the WIAS and he serves as the editor-in-chief for Asian Tribune. In the Court of Appeal’s opinion, he has therefore such a position through his service that the WIAS is to be held liable for the statements that he in this capacity has disseminated and which constitute a violation of Nadarajah Sethurupan’s dignity. The WIAS shall therefore be liable for the damage in accordance with the principle of so-called organ liability (see for example Bengtsson & Strömbäck, The Tort Act – A commentary, fourth edition 2011, s. 61).

The fact that the WIAS is liable for damages in accordance to the principle of organ liability cannot be considered as preventing that also K. T. Rajasingham – who has committed the crimes invoked in support of the claims in the case – also is held liable in person for the damage that the dissemination of the statements leads to.

Since both K. T. Rajasingham and the WIAS are liable for the damage, they shall be jointly and severally liable.

The size of the damages        

The Court of Appeal does not find any reason to make any other assessment of the size of the damages than the District Court in respect of the size of the damages. The same goes for the question of interest on the claimed compensation. The District Court’s judgment with regard to damages for violation of one’s dignity (see item 1 in the District Court’s judgment) shall thus be upheld.

Action for declaratory judgment

Also in respect of the action for declaratory judgment brought by Nadarajah Sethurupan, the Court of Appeal concurs with the District Court’s assessment. The District Court’s judgment shall thus also in this respect be upheld (see item 2 in the District Court’s judgment).

Publication in a newspaper in Sri Lanka

In the District Court, Nadarajah Sethurupan requested that K. T. Rajasingham and the WIAS at penalties should be ordered to pay the costs for translating and printing the judgment in certain media (claim No. 3 set out on page 4 of the District Court’s judgment). The request was dismissed as regards the publication in Norwegian and Swedish media, but was approved as regards a newspaper with nationwide circulation in Sri Lanka. In the dismissed parts, the judgment was appealed, but the Court of Appeal did not grant leave to appeal.

The District Court has in its orders obliged K. T. Rajasingham and the WIAS, at a certain penalty and within a certain time, arrange for the printing of a translation into English of the judgement in a newspaper with nationwide circulation in Sri Lanka (item 4 in the District Court’s judgement).

Nadarajah Sethurupan’s request has, however, not been anything else than a request for the defendants to, at penalties and within certain time, pay the costs for a translation and the printing of the judgement. The District Court has thus gone further than requested by him.

According to the provision in chapter 5, section 6, second paragraph, in the Tort Act, a person being guilty of violation of the dignity of others may depending on the circumstances be ordered to pay the costs for the printing of the judgment in one or more newspapers. The provision must also be considered to provide for an obligation to pay the costs for a translation of the judgment, in cases where the translation of the judgment is necessary for the printing to be meaningful. Nadarajah Sethurupan’s request for the defendants to pay the costs for translation and printing has thus a legal basis and shall be approved. The request for penalties do, however, lack legal ground and shall be dismissed. The District Court’s judgment shall in this regard be changed so that K. T. Rajasingham and the WIAS, jointly and severally, shall be obliged to pay the costs for translating and printing the District Court’s and the Court of Appeal’s judgments in a newspaper with a nationwide circulation in Asia.

Publishing on the Asian Tribune website  

In the District Court, Nadarajah Sethurupan requested that K. T.Rajasingham and the WIAS should be obligedsolidariskt, envar vid vite om 100 000 kr, att inom 14 dagar från det att denna dom to include, at a prominent place on the front page of the website www.asiantribune.com, a link to the judgment in this case and to an authorised translation into English of the judgment (request No. 4 claim set out on page 4 of the District Court’s judgment). The District Court approved of the request.

According to chapter 7, section 6, second paragraph of the Fundamental Act on Freedom of the Press it may – if the defendant is found guilty of certain crimes under that Act – be decided that the judgement shall be included in the newspaper, journal, book or other printed matter which contained the criminal statements. There is a similar provision in chapter 5, section 4 of the Fundamental Law on Freedom of Expression. These provisions do not apply in the present case. As stated above, chapter 5, section 6, second paragraph of the Tort Act does only mean that an obligation can be imposed to pay the costs for printing. The preparatory works give a certain room for discretionary considerations. This room is in respect of to what extent the defendants ought to be obliged to pay the costs for the printing. As the preparatory works now are to be interpreted, it ought to be possible also to order a defendant to pay the costs for printing or publication in other media than those that were relevant at that time. This does not mean that the scope of the provision also shall be extended so that it applies also to other forms of obligations to publish. On the contrary, it was emphasized in the preparatory works that the provision does not include an obligation on the newspaper to print the judgement.

There is consequently no explicit statutory provision for ordering K. T. Rajasingham and the WIAS to include on the relevant website a link to the judgment. The District Court has in its judgement referred to the underlying objectives for the provisions on the printing and publishing of judgement of this type.

The obligation to publish judgement in accordance to the said provisions of the Fundamental Act on Freedom of the Press and the Fundamental Law on Freedom of Expression is a penal sanction for crimes committed. Even if it would be possible to invoke legal arguments with a political dimension in support of the District Court’s considerations in this part of the case, it must be concluded that such an important penal sanction for a violation of the law must have statutory basis. There is no such statutory basis. Nadarajah Sethurupan’s claim in this part of the case can therefore not be approved. The District Court’s judgement (item 3 in the District Court’s rulings) shall be changed accordingly.

Litigation costs

The proceedings in the Court of Appeal have practically only concerned the question of whether or not it was justified to publish the statements at issue in this case. The fact that the District Court’s judgment is changed as regards the questions regarding the publishing of the judgments must in this be considered to be of minor importance. This means that K. T. Rajasingham and the WIAS shall be order to pay full compensation for Nadarajah Sethurupan’s costs for legal aid.

HOW TO APPEAL, see Appendix B.

AÖverklagande ställs till Svea hovrätt men ges in till tingsrätten senast den 2 juni 2010.ppeals no later than 23 March 2012.

[SIGNATURES]

The appeal court judges Staffan Lind, Sven Johannisson, referee, Daniel Eriksson and Jojas Brunberg have participated in the ruling. Unanimous.