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.