Tuesday, January 18, 2011

More On Defamation

It is incredible to me that there is a pervasive inability to distinguish between the open and frank discussion necessary in a properly functioning democracy and the abuse of the right to freedom of speech.

In general an abuse of a right involves using the right in such a way as it infringes on the rights of others. The simplest way to illustrate this point is the example: “Your right to swing your fist stops where my face begins”. This is what laws restricting rights are for: protecting others.

In terms of freedom of speech you have to add one exception to the principle: whether the action is in the public interest (i.e. all political discussions), but even then there are many times when that particular restriction on freedom of speech can be applied legitimately.

In Bermuda such legitimate restrictions do exist in our Criminal Code, with numerous safeguards. The Royal Gazette has registered their opinion that “Only dictators determined to quell all dissent can have a use for a law like this” but let’s have a look at the law and see if that assessment really holds water.

"211         (1)          It is lawful to publish a fair comment respecting—
(a)          any of the matters with respect to which the publication of a fair report in
(b)          good faith for the information of the public is by section 210 declared to be lawful;
(c)           the public conduct of any person who takes part in public affairs,(i.e. Politicians) or respecting the character of any such person, so far as his character appears in that conduct; the conduct of any public officer or public servant in the discharge of his public functions, or respecting the character of any such person, so far as his character appears in that conduct;
(d)          the merits of any case, civil or criminal, which has been decided by any court of justice, or respecting the conduct of any person as a judge, party, witness, counsel or officer of the court, in any such case, or respecting the character of any such person, so far as his character appears in that conduct;
(e)          any published book or other literary production, or respecting the character of the author, so far as his character appears by such book or production;
(f)           any composition or work of art, or performance publicly exhibited, or respecting the character of the author or performer or exhibitor, so far as his character appears from the matter exhibited;
(g)          any public entertainment or sports, or respecting the character of any person conducting or taking part therein, so far as his character appears from the matter of the entertainment or sports, or the manner of conducting the same; or
(h)          any communication made to the public on any subject.
212         It is lawful to publish defamatory matter if the matter is true, and if it is for the
public benefit that the publication complained of should be made."

So here we have a law that protects, among other things, all political discussion and truths that are in the public’s best interest to be shared. Doesn’t it really seem like the Royal Gazette and I are talking about the same law does it?

For the benefit of truly understanding the implications of the argument being made by the Royal Gazette let’s assume that they are correct and that it is wrong to restrict freedom of speech in this way. Wording this argument in a different way: We should have the right to make “Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession, occupation or trade, or by which other persons are likely to be induced to shun, or avoid, or ridicule, or despise him” regardless of whether or not what we are saying is true or if it is in the public interest to say it because to remove such a right is an unacceptable restriction of freedom of speech. What does that actually mean?

Well it seems as though not even the one making that argument (i.e. the RG) knows what it actually means. While with their right hand they defend that right, with their left they suggest that it isn’t really a right at all. In fact they explicitly say “He [The alleged “victim”] can still bring a civil action. That was the right course at the beginning and it is the right course now.” Indicating clearly that they believe one should be punished if one is guilty of defamation and that it therefore isn’t a right (since one is not punished for exercising a right). So what is it that they really think? Does it really come down to a disagreement with the word crime?

I think partly yes. The other part seems to come from a disagreement with the punishment (the possibility of imprisonment rather than a monetary punishment) which, in itself, is no reason to declare the law unconstitutional or wrong. Coming back to the issue with the “c word” I find it difficult to understand  why civil action is preferred in this case over criminal. In both cases the idea is to prevent defamation by providing a punishment, in both cases lawyers are involved and in both cases the test for guilt is pretty much the same from what I understand. The only difference is that one path requires the alleged victim to understand the law and to have the money or guts to take their defamer on, the other doesn't.

We need to decide, as a country, what we believe is right. This does not come down to freedom of opinion as the Royal Gazette sought to portray it. It is about protecting people from unrestricted abuse of a right. Let’s accept it, there is no such thing as a right that remains a right no matter what extreme we wish to take it to, there is always a line. That line is at the point where we begin to infringe on the rights of others.  That is what this issue is really about. Do we believe that it is wrong to defame someone? Do we believe it is right that someone is punished for defaming someone? If the answer to both questions is yes then it’s the punishment that we must debate, not whether it is a crime or not since the answer to that question is clear if prejudice is put aside.

It would be a terrible shame if the Supreme Court were to declare this law unconstitutional.


  1. Hi,

    There's an important distinction between civil and criminal proceedings. They are not both, as you suggest above, designed to punish. Punishment is an important element of criminal law. It is not really an element of civil litigation.
    The purpose of a civil action is to right a wrong. If somebody damages my reputation, I can both vindicate my reputation by suing for defamation, and also receive compensation for the damage it has done to my reputation (e.g losing my job, or losing business, or stress etc.).

    There's a crucial difference of purpose between the two.

    What you have to realise is that the defamation laws make it too easy for the strong to supress dissent or criticism.

    Let's assume that you find out something scandalous about a powerful figure, and want to publish it. Let's assume that you know this scandal is true, and are fairly sure you could prove it too. You are about to publish, and receive a letter from a lawyer denying the scandal and saying that it is considered defamatory.
    The legal fees in a defamation case can run into the millions. You're pretty sure you could win, but your opponent can outspend you on legal expertise, so you're not sure of the outcome. If you lose, you will be bankrupt, and could end up in prison. Even if you win, it could occupy your spare time for months or years, and take every cent you have to defend yourself.

    If you have a family to support, or a living to pursue, the easy option is to back down. Many publications, even big ones, will back down rather than risk costly defamation proceedings.

    There needs to be legal redress to vindicate reputations, but the balance needs to be realigned to protect freedom of expression

    Charles Richardson is lucky - he is a lawyer so can do a lot of the legal work himself. He is doing everybody a favour by standing up for himself.

    By the way, did you know that sedition is also still a crime in Bermuda?

  2. Hey,

    You are correct in the distinction between civil and criminal proceedings, but I disagree that the differences are as important as you suggest.

    Essentially both reflect society's belief that a certain action is wrong and its wish to prevent that action. They are two branches of the same tree, one dealing with actions deemed to have been crimes against all of society (criminal) and one dealing with actions harming an individual which society says are wrong.

    My argument was based on the idea that if society says something is wrong and should be stopped then it must take it upon itself to prevent that action.

    One could argue that theft should not be a crime and should be dealt with only in civil courts in the same way you can argue that libel should be dealt with only in civil courts. In both cases where it eventually ends up is a judgment call regarding punishment vs. reparations, but they generally interchangeable in the sense that it is enforcing societies values.

    I believe that in order to protect everyone (not just those who have easy access to lawyers and the legal know-how to know that they have some kind of recourse) it libel must remain a matter for criminal courts.

    As for the legal costs and advantages of the powerful over the weak I think you will find that you will have that issue regardless of whether its a civil or criminal matter and I agree it is a problem. That however is a completely different matter. The legal protections in the law on defamation are robust, slightly archaic, but certainly robust. They could be updated slightly, but I do not see how turning this into a civil matter instead of a criminal matter is going to protect freedom of expression in any way since presumably the same test would apply as does now.

    I had never considered whether or not sedition was a crime or not in Bermuda, but I'm not quite sure why that's relevant.