The Fiji Court of Appeal has ruled that former SODELPA Member of Parliament, Niko Nawaikula’s Facebook post pub­lished on December 21, 2017, was defamatory of the Fijian Broad­casting Corporation (FBC) and its chief executive officer Riyaz Sayed-Khaiyum.

The judgment was delivered by the Panel of Judges inclusive of Justice Almeida Guneratne, Jus­tice Susantha Lecamwasam, and Justice Farzana Jameel, while allowing the appeal filed by Mr Sayed-Khaiyum and FBC against Nawaikula.

Nawaikula was sued by FBC and Mr Sayed-Khaiyum for putting up a Facebook post on December 21, 2017 at 1.25am titled ‘RIYAZ MUST RE­SIGN AS ATS CHAIRMAN & GET OUT’.

Nawaikula had raised questions in his post in relation to FBC’s $21 million debt to upgrade FBC and why Fiji Independent Commission Against Corruption (FICAC) had not investigated it.

In October 2020, the Civil High Court had ruled that Nawaikula’s comments were not defamatory.

Following this, Mr Sayed-Khai­yum and FBC (Appellants) ap­pealed the High Court decision with 11 grounds.

One of the grounds was that the learned Judge erred in fact and in law by finding that the comments made by Nawaikula were true and not defamatory.

In the appeal, the lawyer for FBC and Mr Sayed-Khaiyum stated that the post was in its plain and ordi­nary meaning were prima facie de­famatory and false and was made with the intent to cause harm to the Appellants reputation.

The lawyer stated that the post was done on the social media plat­form, Facebook, which had a world­wide audience and as a result, the Appellant had been injured in their credit and reputation and had been brought into public scandal, odi­um, and contempt.

The Panel in their ruling on Fri­day said Nawaikula’s post caused injury to the reputation of Mr Sayed-Khaiyum and FBC, and re­sulted in loss of business and rev­enue for FBC.

The Panel said an MP who raised matters of public interest must do so after verifying the facts, as a matter of public interest.

They said the interest of the pub­lic was in receiving information, and not misinformation.

The Panel said the post was pub­lished on a global platform, it went beyond the public of this country, therefore the ‘public interest’ crite­ria was not met in this case.

The Panel said Nawaikula did not produce any evidence to establish the truth of the contents of the statement in his post.

The Panel said they were not convinced that Nawaikula acted honestly and in good faith and he jumped too quickly to unfounded conclusions.

The Panel further said that Nawai­kula made an imputation without any basis of fact to support it.

The Panel found that Nawaikula targeted Mr Sayed-Khaiyum per­sonally in his two different capaci­ties.

The Panel said at Air Terminal Services, Mr Sayed-Khaiyum was the chairman who was faulted for not being able to amicably settle the strike. At FBC, as the CEO, he was faulted in for alleged financial impropriety.

They said above all, whether a public figure or not, the criticism had to be based on the truth and comment would not be considered ‘fair’ if it was untrue.

The Panel held that the evidence revealed that the statements made by Nawaikula were made with mal­ice.

The orders of the Fiji Court of Appeal are:

n The judgment of the High Court dated October 9, 2020, is set aside, and the appeal is allowed.

n The Appellants are entitled to general and special damages as claimed in the Statement of Claim.

n A permanent injunction is granted in terms of the Statement of Claim.

n No order for Indemnity Costs.

n The case is remitted to the High Court for assessment of dam­ages.

n The Respondent will pay to each off the Appellants separately a sum of $5000 (amounting to a to­tal of $10,000) as costs in this Court, and $3500 each (amounting to a sum of $7000) as costs in the court below, on or before November 30, 2022.

Story By: ashna.kumar@fijisun.com.fj