Former Public Relations Officer (PRO) of the Guyana Elections Commission (GECOM) Vishnu Persaud has won just under $5M in a lawsuit he brought against the Guyana Chronicle and GECOM Commissioner Vincent Alexander for defamatory statements they made about him.
Referencing a number of case law authorities, Justice Priya Sewnarine-Beharry in her ruling dated August 18th, said among other things that the ordinary person reading the words used against Persaud would not only infer that he lacked the relevant qualifications for the position of Deputy Chief Election Officer (DCEO) which he sought with the Commission, but that he was involved in dishonest conduct to obtain the position.
“These statements were an attack on the Claimant’s professional reputation and amounts to defamation, the judge said.
In 2018, Persaud (the claimant) had filed an action against defendants—Alexander, the Guyana Chronicle and its then Editor-in-Chief Nigel Williams for what he said was the publication of defamatory statements which caused injury to his reputation.
He averred that the Chronicle newspaper on June 14th, 2018 published a photo of him headlined “Poor past …Alexander says Vishnu Persaud’s past performance sank him -Myers emerged the more qualified for the top GECOM post.”
On page four he said was another publication again bearing his photograph and above the words; “Former Deputy Chief Elections Officer (DCEO) of the Guyana Elections Commission (GECOM) Vishnu Persaud, was rejected from rehiring on the grounds of his past performance, his alleged history of faking his qualifications to the commission…’ He (Justice Patterson) objected to Vishnu based on past performance, based on the other candidate having better qualifications and based on the history of misrepresentation of qualifications to the commission’, longstanding commissioner Vincent Alexander told the Guyana Chronicle.”
Persaud further deposed that in an article published by the Stabroek News’ online platform, he sought to defend himself, but noted that in the comment section; Alexander wrote the comment “…When Mr Persaud was appointed as DCEO it was on the pretext that he was the holder of a first degree. I contested that then and it was maintained that his diploma was equivalent to a first degree hence my objection then was overruled. I specifically posed that question in the recent interview and he admitted it was not a first degree; hence he was never eligible to be appointed in the first instance. This fact is carefully skirted in his letter. My evidence remained unchallenged.”
In another print and online publication by the Chronicle on June 28th, 2018 Persaud said the newspaper carried a second article entitled “I Challenge Jagdeo to a Face off on the Facts”, which he said contained the words; “On that matter I stand by my word and hereby restate emphatically that Vishnu Persaud’s candidacy was opposed by me on the grounds that the other candidate is superior, in addition to the fact that Vishnu was appointed as the PRO of GECOM when he was not qualified for the job. He was elevated to the DCEO on the pretence of being the holder of a first degree, here again, he was appointed to a position for which he was not qualified.”
According to Justice Sewnarine-Beharry’s judgment seen by this newspaper, the Chronicle admitted to the publication of the June 20th article, but denied using the word ”pretence,” contending instead that it used the word “pretext.”
Persaud argued through his attorney Devindra Kissoon that the words/statements published in both articles were defamatory since the natural and ordinary meaning of the words in the first article suggested that he faked his qualification to GECOM; while the comment and the second article suggested that he was elevated to DCEO on the pretence of being the holder of a first degree.
He contended further that the statements were formulated as assertions of fact that he misrepresented or faked his qualifications while applying for the DCEO position. He said he sued Alexander because the Chronicle published that he misrepresented his qualifications to the Commission.
Persaud said that the statements were untrue as he never misrepresented his qualifications to GECOM as alleged or at all, nor were such allegations ever levelled against him, a fact which according to him was known to the defendants or ought to have been known by them with reasonable inquiries.
According to the judgment, Persaud admitted that when the post of DCEO was advertised he did not have the qualifications of a first degree. He stated that when he was interviewed for the position of DCEO neither Alexander nor anyone asked whether he had a first degree.
Persaud said that the reason he was suing the defendants was because their various statements made him appear as though he misrepresented his qualification and “cheated to obtain the job,” when according to him that was not the case.
He said that as a result of the publications, the high esteem he had prior to the publishing caused respect for him to be lowered.
Among the issues which the court determined was whether the statements were in fact defamatory.
Referencing legal literature on libel and slander, Justice Sewnarine-Beharry noted “a man commits the tort of defamation when he publishes to a third person words containing an untrue imputation against the reputation of another. The learned authors of Gatley opined further at page 6, that any imputation which may tend to lower the plaintiff in the estimation of right-thinking members of society generally, cut him off from society, or expose him to hatred, contempt or ridicule, is defamatory of him.”
The judge then examined the statements complained of by Persaud.
In the first article she said that the reporter Ariana Gordon stated several grounds for rejection of Persaud’s reappointment to his former position as DCEO by the Chairman of GECOM including his history of misrepresentation of his qualifications to the Commission which was mentioned about three times in the article.
The court noted that those words suggest that the Claimant dishonestly obtained his position by putting to the Commission qualifications he did not in fact have and were defamatory of him. However, the court said it must be noted that the reporter indicated to the readers that the newspaper was unable to verify the allegations by Alexander.
In the second article prepared by Alexander, the judge said it appears that the article attempted to refute the allegations that then Chairman of GECOM Justice James Patterson was biased in the selection process of the DCEO; while Alexander highlighted among the reasons for the Chairman’s objection of Persaud’s reappointment as DCEO was on account of his ineligibility for the position.
The court pointed out that Alexander also indicated that the Claimant was unqualified for the post of PRO which he previously held as the article clearly expressed that Persaud was not qualified for the posts of PRO and DCEO.
The court pointed out that the article further
suggested that Persaud was only elevated to DCEO because he represented that he had a first degree when in fact he did not have a first degree.
The ordinary person reading the words used, the judge said, would not only infer that Persaud lacked the relevant qualifications for the positions of PRO and DCEO but that he was involved in dishonest conduct to obtain the DCEO position.
“These statements were an attack on the Claimant’s professional reputation and amounts to defamation,” the judge said.
Defences
Justice Sewnarine-Beharry then turned her attention to the issue of whether the defences of justification or fair comment were available to the defendants as they contended.
Regarding justification, the judge said a claimant establishes a prima facie cause of action as soon as he has proved the publication of defamatory words, adding that he does not have to prove that the defamatory words are false, since the law presumes this in his favour.
If the defamatory imputation is true that is a complete defence to an action for libel, the judge said.
She said that to establish the plea of justification the defendants must prove that the defamatory imputations are true in substance and fact, noting that the onus lies on the defendant to satisfy the court that the statement justified is substantially true, even if the proof does not establish every detail.
The judge said that where a defendant repeats a defamatory statement made by another he must prove that the statement was true and not merely that it was made.
Citing case law she noted, “if you repeat a rumour you cannot say it is true by proving that the rumour in fact existed; you have to prove that the subject matter of the rumour is true.”
On this point the judge said that Alexander’s evidence is that he repeated what Justice Patterson was reported to have said. It is no defence for the first defendant to say that he was merely repeating what Patterson said he must prove that what Patterson said was true, the judge said.
Similarly, she added, the Chronicle and its Editor-in-Chief cannot rely on the fact that Alexander uttered the words to Gordon; since as a defence they have to prove what was said is true.
The judge said that in order to avail themselves of the plea of justification the defendants must prove that the Claimant had a history of misrepresenting his qualifications to GECOM and that he purported to have a first degree when he did not have one.
Persaud’s application and CV the court pointed out, made no reference to having a first degree or anything equivalent of a first degree while noting that instead the application demonstrated the his suitability under the second requirement/criteria of the advertisement as he had a certificate in Elections Management and Leadership (level 5) with specific expertise in Electoral Processes and a Diploma in Public Relations along with 10 years’ experience in the management of elections working as PRO and Personal Assistant to the Chairman since 2004.
The judgment highlighted where the defendants submitted that Persaud was not qualified for the position of PRO and the comment regarding his appointment was justified.
Persaud’s evidence, Justice Sewnarine-Beharry pointed out, however, was that he applied for PRO upon the invitation of former Chairman Steve Surujbally.
According to court documents, prior to his appointment there was no PRO position and no advertisement for a vacancy.
The judge said that considering the absence of any qualification criteria at the time of his employment, the imputation that there was any wrongdoing on Persaud’s part in relation to his appointment as PRO so far that he was not qualified is misconceived.
She said that the defendants failed to adduce evidence to support the contention that Persaud misrepresented or faked his qualifications to GECOM and so the plea of justification fails.
The defendants contended that Persaud was appointed on the basis of the first requirement of the advertisement. However, the court found that there was no evidence adduced proving that the claimant was appointed on the basis of the first requirement – that is on the basis of holding a first degree.
Moreover, the judge said there is no evidence that the claimant held out himself as possessing a first degree.
The court found that there was also no evidence of the claimant misrepresenting his qualifications to GECOM.
The judge said that while Alexander relied on comments of Surujbally as misrepresenting the claimant’s qualifications, he failed to adduce evidence in support of this contention.
The judge said that from Persaud’s qualifications tendered before the court it appears that he was qualified under the alternative criteria in the advertisement for the DCEO and that therefore justification fails on account of the defendant’s failure to establish that the words published were true.
In examining the defence of fair comment, the court noted that in order to succeed on this defence the statement must appear on its face to be a comment or opinion and not a statement of fact, and citing case law said that the comment must be based on true facts.
The onus the judge said, lies on the defendants to prove that the subject matter of the article is one of public interest and that the words are a fair comment on it.
Justice Sewnarine-Beharry then said that in the instant case a plain reading of the statements reveal that they are stated as fact. There is no element of opinion or subjectivity in these statements. Alexander admitted under cross-examination that the words in question were statements and/or assertions of facts.
Even if the statements were opinions the judge said, such opinions must be based upon true facts for the defence of fair comment to succeed.
The judge said it has been demonstrated that the statements were based on falsehoods, consequently, the threshold for the defence of fair comment has not been met and the defence fails.
Having found the defendants liable in defamation the judge then went on to assess damages.
To this she said that a successful plaintiff in a defamation action is entitled to recover as general compensatory damages a sum that will compensate him for the wrong he suffered and that that sum must compensate him for damage to his reputation, vindicate his good name and take account of the distress, hurt and humiliation which the defamatory publication caused.
Justice Sewnarine-Beharry said that the publication of the defamatory statements tarnished Persaud’s professional and personal reputation which he garnered over the years through educational pursuits and work experience at GECOM and would have affected his ability to secure future employment opportunities.
The judge said that having considered the aggravating and mitigating factors, Alexander is to pay damages to Persaud to the tune of $2,500,000; while the Chronicle and Williams were ordered to pay damages in the sum of $1,500,000 jointly and severally.
Additionally, Alexander was ordered to pay costs to Persaud in the sum of $150,000 on or before September 30th, 2020. This identical order was also made to the Chronicle and Williams.
