The Jeff Cumberbatch Column – Freedom of Expression and the Citizen

freedomofexpressionIn a progressive democracy, as we claim to be, a necessary corollary of the civic freedom of access to information that we explored last week is the freedom or right to use that information to assess for oneself and to seek to persuade others of one’s assessment of which are the optimal political choices on offer.

That freedom is, in other words, the freedom of political speech or, as the Constitution would have it, the right to freedom of expression that includes expressly “the freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference and freedom from interference with one’s correspondence and other means of communication”. And while, of course, this freedom is not absolute, any state restriction, especially one on political speech, should be subjected to the closest judicial scrutiny for moral and constitutional legitimacy.

One restriction on this freedom that has been accepted over time has been that the law of the law pertaining to defamation. Indeed, this is also constitutionally recognized in that it is provided that nothing contained in or done under the authority of any law shall be held to be inconsistent with the guaranteed freedom to the extent that the provision is “reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons” (emphasis added).

Historically, in the region and elsewhere, that the law of defamation constitutes an exception to the right of free speech rather than creates a constitutional guarantee of an inviolable reputation has seemingly been forgotten in the comparative inertia of state legislatures to reform the defamation law to enable a greater freedom of expression and the reluctance, until relatively recently, of the judiciary to be activist in the protection of freedom of expression; phenomena that have opened an avenue for public officials to avidly seek protection from, and redress for, any adverse comment on themselves.

A cursory examination of the regional Law Reports should reveal the many occasions on which the names of those involved in politics and public life appear as successful claimants when the content of a modern civic entitlement of political communication should entail discussion of the conduct, policies and fitness for office of members of political parties in general and of the governing administration in particular, public officers and other “political” figures such as the leaders of workers’ and employers’ organizations, judges and political commentators so long as the defendant publisher can establish that he, she or it was unaware of the falsity of the imputation.

The American legal scholar, Alan Dershowitz has weighed in on the nature of freedom of speech, According to him, “freedom of speech means freedom for those (whom) you despise, and freedom to express the most despicable views, It also means that the government cannot pick and choose which expressions to authorize and which to prevent”.

This compels my identification an increased freedom of political speech as an essential provision of any modern day political compact.

Of course, in order for this agreed freedom to be effective, the citizens must be prepared to avail themselves of it . There appears to be a pervasive sentiment that in Barbados, for one, the defamation laws provide a substantial restriction on political expression, frequently expressed in the cliché description of the “libel” (defamation) laws as archaic. I an prepared to concede this point in two regards, first, that there still exists here the possibility of a prosecution for criminal libel –an offence that at least three regional jurisdictions have recently sought to abolish and second, that it is still possible to defame a dead person In Barbados, even though in that latter circumstance the remedies and class of potential claimants are limited..

Beyond this however, apart from Antigua & Barbuda (2015) and Jamaica (2013) that have reformed their defamation laws, Barbadians enjoy one of the most liberal defamation statutes in the region and perhaps in the common law world.

Nonetheless, as I have often stated in this space and elsewhere, freedom of expression is not simply a matter of law, but also one of national culture and attitudes. Political communication that may avoid censure as calypso lyrics in Trinidad & Tobago suffers a distinctly different fate locally where an earlier attempt to argue that a similar culture should exist in this jurisdiction was met with the injunction that this would require statutory reform after appropriate lobbying of the authorities. Further, the general reluctance of the media aggressively to contest defamation claims instead of quickly settling these matters with a potential claimant has also contributed to a degree of stasis in the development in the common law in this area.

To a substantial extent, the local freedom of expression has mushroomed in recent times with the anonymity afforded by the advent of the blogs and the provision of avenues to the general public for commentary on reports by some sections of the online media. This has opened these contributors to charges of cowardice and worse from those who regard the anonymous contribution as being a worthless abdication of the freedom of expression rather than an exercise of it. This dispute may be more metaphysical than anything else.

While it may be true that the anonymous or pseudonymous contributor may express sentiments that he or she might not have done under his or her true name, if we should hew to the constitutional definition of freedom of expression as “the freedom to hold opinions without interference, freedom to receive ideas and information without interference, and freedom to communicate ideas and information without interference”, then the anonymous exercise of these freedoms should scarcely detract from their civic and political value.

22 thoughts on “The Jeff Cumberbatch Column – Freedom of Expression and the Citizen

  1. The illegality of Barbados’ archiac defamation laws should become a reality, politicians should not be allowed to blatantly and maliciously disrespect the citizens, the constitution and parliamentary laws by being for decades, purveyors of extortion, bribery and corruption, pre and post elections to control the work force, bend the population to their will and enrich themselves….all of which are criminal in nature.

  2. The day the police stayed home. I wonder how freedom of expression would go over on that day. Would those protesters that held the gay pride parade ransom in Toronto do the same to the st paddys day parade on that day or any day for that matter. Police ….whether you are with them or against them you have to realize they keep the real crazies in check.

  3. Lawson…they themselves, the police, also have to be kept in check, they are public servants…paid by the citizens to protect them, not to find ways to murder them, that is the reason the constitution put checks and balances in place.

    Everyone has to be kept in check, it’s human nature to deviate when they have even the minutest power over each other.

  4. Bajan have a lot of freedoms but none when printing or talking about the crooks, liars and scumbags in office ,None of you so call lawyers dont stand up for law or rights , But look to make the people and the news afraid to speak and type and report the crime of so called big ups in office, ND allows people to speak what they know, live, see , hear and live under these Bitches, From your Station Sgt Mark White, to the DPP AG,PM , Nothing but vote buyers, Non crime fighters , money , land laundering set up PIMPS,down to the murdering police and drug dealers they are,to the COP Dottin, Ex CJ Simmons ,All crooks, People need to be free from them then no need for freedom of speech when all take an Oath and stand by it, Looking to put the people back in a Jar like ” I DREAM OF GENIE” IN A BOTTLE, ALL of you need to be exposed and the freedom of speech and freedom of information is how you root out the scum,

    As this two mouth lick mouth post look to make people shut up,Your type of law school really look to make people timid as you all love dealing with your counter parts crooks in Barbados on both side of the law,
    Black people in Bim love to follow white people , Well the white are sick of their white leadership so soon the black will be sick of their and Vote all them Bitches out of Office, Crooks never last for ever for they never know went to STOP , Until the people take to the streets,
    When the people get sick of you all Nothing But Nothing will Stop them from Putting you all in place , Police, Defense Force, GG nor England, None of you take to your Oaths , only the Crooks take to there oaths to take all they can when they can for as long as they can ,

  5. Your right paid to protect them ..not be abused by is harder to retain cops or even hire them a lot sign up in the big cities get the experience and move to small communities where they are appreciated and it is safer leaving the big city people with what they don’t want inexperienced gamer quick hand reaction cops.. The second thing you said is interesting I believe the same.. so you agree we may see sharia a law in north America when we reach the tipping point of population

  6. @Jeff

    We appreciate your characterization of the metaphysical difference between opinions offered under pseudonyms and those under ‘real’ names.

    We trust the law will never be able to attached its intent to those persons who maybe operating under the colour of law when, under law, opinions may not be as plain.

    That determination is adroit, LOL

    Under United States law there is still an argument which suggests that Black people are not in their proper person when approaching the courts with the names of former slaves owners.

    That argument contends, in 2016, that ‘property’ has no proper standing in law and is presented as a reason why Black people could be shot in the streets by the police without consequence. Is there a parallel legal reasoning in Barbados.

    But Jeff, could you agree with us that protections in law against libel and defamation are largely to serve the elites and shield them from the attacks coming from ordinary persons. The money flows or judgements never seem to go in a reverse direction, do they, or at best only horizontally?

    And that those protections, what you called freedoms/rights, in the law are then exacerbated in a wider domination by elites of economic resources. This is the critical connection. Resources, resources, resources, not rights in and of themselves.

    So although Common Law was to be for the protection of the masses we are more and more devolving into the conditions which existed before the Magna Carta.

  7. The news, however, was not taken lightly by Marleen Knight, whose husband, Selwyn “Blues” Knight, was allegedly gunned down by Gittens on March 15, 2015. – See more at: @@@@

    allegedly gunned down by Gittens ?????? Well look the Son that he looked to kill also is alive to know and Witness him and others,

    allegedly , killed one and injured the other with bullets
    allegedly, wipe shit all over his jail cell
    allegedly, was sent to the nut house for his nasty paint work
    allegedly, he will be back on the force
    allegedly, to get a pay check
    We know all of you better keep your nasty ways in Barbados, for no one in the World buying that mess you all serving as Justice.

  8. Lawson…you have all right to be concerned about the muslim religion and their practice of brutality against women, children and whoever displeases them and their imaginary’s frightening and was allowed to spread like the dangerous and aggressive cancer it is, by the same western governments, under the guise of freedom of religion…again Western governments love to sow the wind and cause innocent people to reap the whirlwind.

  9. “And that those protections, what you called freedoms/rights, in the law are then exacerbated in a wider domination by elites of economic resources. This is the critical connection. Resources, resources, resources, not rights in and of themselves.

    So although Common Law was to be for the protection of the masses we are more and more devolving into the conditions which existed before the Magna Carta.”

    Agreed,Pachamama, hence my view that there is the need for a new political compact much like the Magna Carta was! I believe that Caswell is making the identical point in his column today!

  10. Barbados did not even follow the laws of , care nor celebrate the 800 year of the Magna Carta on June 15th 2015, England Rule started 1066 and now we are on a 9 ,, the 801 year of that Magna Carta June 15th 2016 . which is the 166 day of the year, Bim 166 sq miles, 1966 ind, 166 pages of fraud Act to defraud people of a Clear Title Deed of 70 Years, Numbers add up in their Numbers to 13 =4 a foundation where a lot of new foundation are being done this year, England makes its moves , Barbados sit back like slaves to see what your pimp title holders look to see what Massa doing before you think of your own minds thinking,
    We all have a right to call it what it is no mater the word , Its must be called out then to be fixed for the better of the People,
    So Barbados is not following the laws of the Maga Carta nor common law, they doing as crime bosses do,
    Panama papers, Laundering, Fraud, CLICO , bank fraud,police fraud , lawyer fraud,high court fraud,judge fraud,record fraud ,History fraud, news fraud, Fraud squad fraud,murder , rape , welcome to 50 years of crooks that write their own history to feed to the people like PIG food. How does it taste?

  11. 37th Regular Meeting of the CARICOM Heads of Government Conference Concludes
    by caribbeantradelaw

    Alicia Nicholls Heads of Government of the Caribbean Community (CARICOM) held their 37th Regular Meeting of the Conference of the Heads of Government last week, July 4-6 in Georgetown, Guyana. The Heads of Government paid tribute to, and highlighted the contribution of the former Prime Minister of Trinidad & Tobago, Mr. Patrick Manning who passed […]

    Read more of this post

  12. @Jeff

    Looks like you have two converts, Exclaimer expressed great anticipation at the promise of a Jeff Cumberbatch column yesterday and today SSS offering congratulations.

    How does it feel to have won over two of your harshest critics? One more to go in chad99999 🙂

  13. David

    I was never harsh with him. I had one encounter with him over constitutional reform for which I felt he was contributing to the problem and not necessarily the solution. Until then, this is the third article I have read by him and found them to be surreptitiously spot on. When was I one of his harshest critics? I simply read his stuff and saw his intent.

  14. Dearest Suzanne

    I like Jeff.

    From the time I met him I liked him. Mr. Cumberbatch impressed me as being a no nonsense man and, based on what de ole man was facing, he spoke the truth and I have appreciated him for that truth.

    Let me divert a bit before i get to his topic which speaketh of defamation and all the rest.

    “…And whereas, there is reason to apprehend that such rebellion hath been much promoted and encouraged by the traitorous correspondence, counsels and comfort of divers wicked and desperate persons within this realm: …”

    These are the words of King George in his Proclamation of Rebellion prior to despatching forces against ye colonie of the Americas.

    Mine is a different evolution to this verbal revolution birthed of (a) belief in (b) reliance on (c) commitment to and (d) support of such seditious men who have effected treason against its own citizen(s) denying many the rights guaranteed under the Constitution of this Cuntry Barbados – the right to work, the right to produce and the right to have protection of what one has produced.

    Maloney and the white boys is do the dog bout heah and carve up barbados as their own playground.

    Killing who dem feel in business, of course, we did not say Abijah or Luke, and yet behold a miracle where there is one rule for the hunkies or the wannabee hunkies and another for po’ people

    Jeff speaks gently of defamation of the living (parasites) and of the dead (divider of the Fatted Calf) so one then wonders if we be wraiths like NazGul from Lord of the Rings condemned to vapourous existences as servants to some dark sorcerer.

    Yet, while not seeking to be cliche and quote Martin Niemöller, who stands for people like me?

    Who is more devoted warrior, for dual climes, who has ** for **, so therefore who is more indoctrinated per law and order, albeit the order as interpreted by **.

    @ Jeff

    Irrespective of what is said Jeff, tell me how can one sleep at night, knowing that entities like LIME et al, discommode? black people with exorbitant bills that one must pay them EVEN THOUGH YOUR PONE IS OUT OF ORDER FOR 6 months.

    And when it is found that they owe a customer money they linger with their repayments, and if they deign to repay you you do not get back your VAT.

    How many car merchants sell older model cars as new vehicles here and when the car goes kaputz and you go online AFTER THEY REFUSE TO REPAIR IT you find that they have misrepresented the facts, who do you run to Jeff?

    The FTC, your entity? is teeth-less, the Office of the Public Prosecutor can only represent you in matters with a value less than $10,000 and the list of egregious things goes on and on and on.

    I have a question for you since it would appear that you are sending a subliminal? message to defamers who are themselves defamed and have no redress.

    Where does an act of defamation against a citizen of Barbados originate? in a sandboxed VPN?

    Is the act committed in the jurisdiction of the hosted Sandbox or in the Country where the subject of the defamation lives/operates?

    What is a “like” is that also defamation?

    Do you see the idiocy of a group of people who can’t even get an online Certificate of Character process working or a functioning CAIPO website?

    It is disturbing what this post imports though Jeff because, in the absence of any coherent Data Act that addresses sandboxes and VPN, one would be concerned about what you are hinting at.

    @ The Honourable Blogmaster


    I would like to hear you weigh in on this topic since IT IS YOUR BLOG,

    We the ignorant few believe that our VPNs and other related data affords us full privacy notwithstanding Jeff’s word to the wise

    While this is a topic that you have exhausted ad infinitum, one would be appreciative if you were to give your own insights, not as to the laws of defamation et al, but moreso to the technical aspects of what the BU site affords us all.

  15. Piece….I wont worry about the politicians. They do not want intelligent people going full BLAST on them.

    They may see themselves unable to travel to other countries if they try to retaliate..,.those diplomatic passports are only for a time.

    Ya remember Noel “muscle mary” Lynch could not get a work visa fir the US..,, of course he will have to tell us what the US knew about him, when he was minister of tourism that they dont want him living and working there….the politicians all live in glass houses, throw one boulder and all their houses will shatter…that includes the crooks and petty criminals the Maloneys, the Peter Harris’ and the Bizzys.

  16. @PUDRYR,

    To answer SOME of your questions. An act of written defamation is complete when and where it is read by someone who understands it in a sense that is defamatory -that right thinking members of the society would tend to think less of the reputation of the individual referred to. A “like” without more will not amount to defamation unless it can be said on a balance of probabilities that the liker was intending to adopt the defamatory imputations in the post.

    Finally, the FTC is not as “toothless” as you suggest in the matters you have outlined above.

  17. @ Jeff

    Thank you again Jeff.

    While i was cognisant of “the when and where it is read” aspect of the act, what i was seeking from you, and what you might, or might not, be able to shed light on is, “in light of the sandboxing and IP anonymization of the “who”, how then can one enforce a when and a where, when there is no who?

    That is rhetorical only Jeff but would beg the questions

    (i) Who committed the act?
    (ii) Where was the act committed?
    (iii) when was it committed?
    (iv) in which time zone and jurisdiction was it committed?
    (v) and in which *** was ***? That *** be the magic bullet and you does always have to keep that one back cause….heheheheheh

    De poor ole man is heartened to hear you speak BECAUSE IN YOU I HAVE GREATER CONFIDENCE than the rest who proudly show their S7 galaxy phones with family packages.

    I would wish therefore to share some things with you offline to confirm what has led me to my assertion that the agency that you have of late come to lead, is toothless,

    Insofar as you hint that it has teeth, it clearly, in the several substantiated circumstances that i outlined, and poor soul that i am, have records of, DID NOT USE THEM, for reasons best known to themselves.

    I can say, with great certainty, that you were not there when they, FTC, in “times before time”, acted as if it were “a lion with dentures, whose polident was old.”

    Check for yourself and see why I for one am so scornful of this FTC agency, confirm this blatant malfeasance rendered by that party you now head.

  18. My Sweet Piece

    I drive a car here that bajans would consider posh and expensive. When I come home, many bajans brag about their Toyotas; Japanese made SUVs, and if one is lucky to drive a BMW or Audi that is a few years old, the long short of the matter is, they are top of the line cars. I have several brand of watches, some cheap, others expensive, however when I come home, the Seiko that an old friend bought in Bridgetown for a thousand and some, or the Fossil that they were able to buy from overseas is a one of a kind and better than any of my brands he or she has never heard about. The long short of this story is that anyone who is in possession of something, in control of something, or the head of something would always say that it works and is the best. Jeff Cumberbatch can say no less or no more. The FTC has teeth, the problem might be that they are selective biters.

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