The Jeff Cumberbatch Column – Broadening Local Freedom of Expression

Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

“Freedom of speech [expression] means freedom for those who 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…” Alan Dershowitz, US Law professor

“As a former member of the US military, I took an oath to defend the constitution which includes freedom of expression. They aren’t kneeling for fun, it’s a protest…”- Guardian vox pop

 Kneeling during the national anthem and flag burning shows utter disrespect for everything this country stands for, especially the military who fight and stand up for our right to protest and freedom of speech. –Guardian vox pop

As is trite, the Constitution of Barbados guarantees freedom of expression among some other rights and freedoms. According to section 20 (1)“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes 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 his correspondence or other means of communication…”

The formulation of the local constitutional rights and freedoms, in consonance with many others in the region, also makes express insulation from constitutional inquiry a contravention of this right that is effected under the provision of any law that is reasonably required in the traditional public interests od defence, public safety, public order and public health, for the purposes of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, of preventing the disclosure of information received in confidence, of maintaining the authority and independence of the courts, of regulating the administration or technical operation of telephony, telegraphy, posts, wireless broadcasting, television or other means of communication or of regulating public exhibitions or public entertainments or that imposes restrictions upon public officers or members of a disciplined force.

I have taken care expressly to reproduce these qualifications to make the point that the state obligation in respect of not contravening the individual right to freedom of expression is limited by the plurality of the qualifications catalogued in the text of the supreme law, in this case occupying substantially more print inches than the right itself!

One aspect of these restrictions that has endured much lay censure over the years is the extent of the reasonableness of the requirement of the contravention through defamation law to protect the reputation of other persons. The charge is often leveled that our defamation law is variously “archaic”, “obsolescent”, “antediluvian” and essentially out-of-touch with the demands of a modern progressive democratic society.

As I have argued on more than a few occasions in this space previously, this woefully mistaken sentiment is owed to two factors mainly. First, there is the cultural aspect; that there are but a few who are willing to fight a defamation case brought against them all the way to the Caribbean Court of Justice by availing themselves of one the multiplicity of defences provided for in the law. This amounts to as form of self-censorship.

The prohibitive cost of doing so is frequently sacrificed on the altar of insurance against liability for defamation which most responsible publications doubtless carry; a reality that contributes little to the development of a reformist jurisprudence in this area of the law.

This negative portrayal of the local defamation law is also owed in part to an unfavourable comparison with the law in some US jurisdictions that, unlike ours, applies the concept of “the public figure defence” to actions brought by those who may be so categorized. Such an individual may pursue a remedy in defamation only where it is established that the publisher of the defamatory imputation at issue was malicious, in that either he or she knew that the imputation was false or was reckless as to its falsity.

In a region where the majority of defamation actions are either brought by or against political personalities who may be so classified, most public commentators would clearly welcome such a defence.

The “catch 22” situation however is that the identical individuals that would be primarily responsible for instituting a legislative change in that direction stand to be “harmed” most by its implementation. Nor do the regional courts seem keen on implementing this defence in their common law; at least three attempts to invoke it regionally have so far all fallen flat for various reasons.

Nonetheless, for what it may be worth, the Barbados Defamation Act 1996 has broadened the freedom of expression of the local commentator in some significant aspects, most particularly, however, in the area of defences which entails that the matter would have already been lodged in court.

Moreover, while a plain reading of the constitutional provision does not oblige the state positively to ensure the advantageous exercise of this freedom by individuals, technological developments and private initiative that have conduced to the existence of social media and an increase in public expression through popular blogging and the provision of avenues for comment by most online newspapers.

These modes of expression have the added advantage that they may be exercised anonymously, a reality that, according to some, may be favoured by most Barbadians, given the societal climate that prevailed during the period of slavery when it was probably suicidal to stand out from the crowd in any way. Mr Harry Russell in his weekly column in another section of the press recently adverted to this cultural trait. Anonymity therefore ensures that the contributor get his or her point across without drawing undue attention to themselves and risking social, political or economic sanction.

Of course, this opportunity for anonymity does not find favour with everyone, more especially when it is used as a cloak for scurrility and defamatory imputation. That may well be the price we all have to pay for a greater freedom of expression and indeed it may reveal more about the individual than the object of his or her calumny.

There is no doubt however; that these new avenues have served to broaden the exercise of the individual freedom of expression in Barbados, a phenomenon that arguably conduces to a more participatory and, hence, more effective democracy.

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41 Comments on “The Jeff Cumberbatch Column – Broadening Local Freedom of Expression”

  1. Dentistry Whisperer (M. Pharm. D) LinkedIN October 29, 2017 at 6:45 AM #

    Does Jeff remember when The English teacher, (Mr. Fowles) kicked Elombe (as an insult) ot a football game at Weymouth at HC and Rugged Mottley asked Mr. Hammond to call an assembly and Mr. Fowles had to apologize to the whole school (1952)

    Regards Haynes Darlington (M. Pharm. D)

    >

    Like

  2. Well Well & Consequences Observing Blogger. October 29, 2017 at 7:12 AM #

    Jeff…how were successive governments in Barbados so successful in suppressing these constitutional freedoms all these decades….with the knowledge of hundreds of lawyers.

    You don’t have to answer if it’s awkward.

    During the days of Samuel Jackman Prescod…colonialists suppressed freedom of speech so he could not educate the masses through his newspaper publication, he was jailed on occasion using the STILL EXISTING libel, slander and defamation laws, which successive governments post independence absolutely refuse to dismantle…because it benefits them when they are being corrupt criminals and thieves….

    Same thing happens in Antigua and other islands.

    The current, newly operating watch dogs and pressure groups must now lobby to dismantle these destructive to the people laws, IN THEIR PRESENT CENTURIES OLD FORM. ….. that STILL relegates the people, the majority Black population….. to silent slaves of yesteryear.

    Like

  3. de pedantic Dribbler October 29, 2017 at 8:13 AM #

    @Jeff, freedom of expression as a right often seems complex to dis-assemble in some cases.

    I enquire of your analysis in two such for a Sunday interlude.

    First, the Lynch v Stardom matter. I have no desire to incite further defamatory peril but failing as you noted “.. few who are willing to fight a defamation case brought against them all the way to the Caribbean Court of Justice ” thus leading to “to as form of self-censorship” can you advise on what was so infradig and apparently illegal whether defamatory or otherwise to ask a public figure to clarify the source of his apparent alleged great wealth since he assumed public office.

    Other than Starcom’s sacrifice “on the altar of insurance against liability…” what were the merits of that settlement judgement?

    And the other case is Hulk Hogan (Boliea) v Gawker website.

    That was framed by the defense as a freedom of expression case but the jury rejected that out of hand and sided with plaintiff claims re invasion of privacy, intention to emotional distress and infringement of personality rights.

    Let me tho shake out one point. It’s possible to support a point in fact or law but dislapprove of the act itself as inappropriate. Gawker did some despicable personal stuff to others in the past but this was certainly a strange case for their final execution.

    Hogan was a major WWE celebrity who built his brand on high junks and overt sexuality (male virility). Yet he won a large settlement for publication of him in a consensual sex act taped by the willing husband of his female partner.

    Without relitigating this matter, why was the first amendment dictum and news worthiness dismissed in this situation?

    Like

  4. Well Well @ Consequences Observing Blogger October 29, 2017 at 8:31 AM #

    ..hope all is well with Bushman, he has had many wicked provocations to answer in the last day, and has not….would love to hear his take on Jeff`s article..

    the self appointed BU lawyers and those who love to call for defamation, libel, slander suits at every comment, may want to read the article very, very slowly 4 times.

    Like

  5. Jeff Cumberbatch October 29, 2017 at 9:28 AM #

    Does Jeff remember when The English teacher, (Mr. Fowles) kicked Elombe (as an insult) ot a football game at Weymouth at HC and Rugged Mottley asked Mr. Hammond to call an assembly and Mr. Fowles had to apologize to the whole school (1952)

    Regards Haynes Darlington (M. Pharm. D)

    Long before my time there, I am afraid. I am 68-75…not in age though!

    Like

  6. David October 29, 2017 at 9:41 AM #

    Thanks for this article Jeff, a must read for some of the JAs who bray about BU’s policy to permit commenters to use monikers.

    Like

  7. Bush Tea October 29, 2017 at 10:08 AM #

    Why do you want Bushie’s opinion on this WW&COB?

    Bushie has long established that Jeff is a man of unnatural intelligence and ability to reason. What he as postulated above is beyond dispute – even by the set of idiots who persist with their stupid calls for slave names to be assigned to bloggers here on BU…

    Seriously…
    Were Jeff to ever be exposed to a ‘Damascene moment’ he will become a force of Pauline import in the annuls of modern history…. without any doubt.

    On a broader note…
    The sad truth is that Bushie is getting a bit tired of whacking the lotta brass bowl shiite that continues to be deposited in the Bajan blogosphere on a daily basis… Indeed, the whacker seems to be only further distributing the jobby – including onto the bushman’s property… 🙂

    BTW
    In answer to the question of why Bajans are afraid to followup on their RIGHTS to free speech, the answer is VERY simple.

    99.9% of Bajans are undisputed brass bowls who are infected with albino-centric disease. There is always a PRICE to be paid for standing up for PRINCIPLE, but on the other hand, albino-centricity is about NEVER sacrificing money and materialism for principle…

    Even when we can CLEARLY see wrong-doing and unethical behaviours affecting us, most of us will NOT pay any kind of price in the defence of principle, ethics or morality. We all grumble, and hope for some stranger to come and stand up for OUR principle.

    What rights to what free speech what??!!
    We sold that right on the alter of greed and selfishness… and we have built a legal system which uses MONEY to emphasise and enforce the albino centric status quo….

    Social media has introduced the great leveller, but even here, our low quality brass bowls are SO cowed, that even with anonymity, we are afraid to expose the nasty, unethical, low-life behaviours that has become endemic in ALL areas of our country….

    Only one end can possibly await such a community- and it AIN’T PLEASANT…..

    Like

  8. David October 29, 2017 at 10:15 AM #

    @Bush Tea

    O

    n a broader note…
    The sad truth is that Bushie is getting a bit tired of whacking the lotta brass bowl shiite that continues to be deposited in the Bajan blogosphere on a daily basis… Indeed, the whacker seems to be only further distributing the jobby – including onto the bushman’s property… 🙂

    Are you not the one who says that some of us have been assigned a role which an ordinary measure does not apply? However there is empathy extended because to tire is a human frailty.

    Like

  9. Well Well @ Consequences Observing Blogger October 29, 2017 at 10:20 AM #

    Bushman…could not have said it better.

    Like

  10. Bush Tea October 29, 2017 at 10:32 AM #

    @ David
    Are you not the one who says that some of us have been assigned a role which an ordinary measure does not apply?
    +++++++++++++++++++++++++++++++++++
    Bushie was referring to eminent persons of your and Jeff’s Ilk….
    Not a shiite hound bushman with a whacker….

    Like

  11. David October 29, 2017 at 10:37 AM #

    No Bush Tea. we all contribute in different ways, remember that!

    Like

  12. Bush Tea October 29, 2017 at 10:56 AM #

    @ David
    we all contribute in different ways, remember that!
    +++++++++++++++++++++++++++++++++++++++++
    Yawn!!!
    Yuh got that right….. all like angela, John, Vincent, Hal and Lawson….
    Mostly to the growing pile of jobby that continues to dirty up the damn whacker….

    Wait!!!
    …what became of Alvin?
    His was a special kind of jobby…. soft like Hal’s – but not as stink……
    LOL
    ha ha ha

    Like

  13. Sargeant October 29, 2017 at 10:59 AM #

    @Bush Tea
    The sad truth is that Bushie is getting a bit tired of whacking the lotta brass bowl shiite that continues to be deposited in the Bajan blogosphere on a daily basis… Indeed, the whacker seems to be only further distributing the jobby – including onto the bushman’s property…
    ++++++++++++
    Sounds like a good time to start your own blog …….. where the price of admission for fellow polymaths is membership of the Prometheus Society….. that should get rid of the riff raff or BBB’s, but please, no more lap dog mascots.

    Like

  14. Vincent Haynes October 29, 2017 at 11:21 AM #

    I wonder how many journalists will take time out to read Jeffs point on defamation which he has articulated many times before.

    High time the Press in Bim start to hold people to account……even start a new media outlet as the defender of Bim.

    In the absence of that we still have this medium with its tired geriatrics still tilting at windmills that they were unable to subdue in their time of power but left to cast aspersions on individuals who have an independent mind set.

    Like

  15. David October 29, 2017 at 11:27 AM #

    @Vincent

    There is a distinction to be made between journalist and media house.

    Like

  16. Vincent Haynes October 29, 2017 at 11:29 AM #

    David

    Yes…..hence….media outlet.

    Like

  17. Well Well & Consequences Observing Blogger. October 29, 2017 at 12:18 PM #

    One would think that the dude who was forced out of Nation recently, Roy Morris, would have started his own new media which would reduce and expose the political dogma and colonial nastiness that obtains in parliament and in traditional media on the island.

    One would think he would have learned his lesson and knew his rights, but ah guess the lack of knowledge, political wickedness and colonial brainwash, runs too deep.

    Like

  18. Bush Tea October 29, 2017 at 12:24 PM #

    LOL @ Sargeant about starting Bushie’s own blog…
    Been there and done that….

    David of BU exposed the whole deal before Bushie was ready to launch …and then the blog was infested with the likes of ‘AC’ and other reprobates of her ilk…

    But the REAL reason bushie ‘retired hurt’ was that it is too much damn work…

    Can’t for the life of Bushie figure out HOW David does it…..
    …and so well too…

    Like

  19. Vincent Haynes October 29, 2017 at 1:25 PM #

    David

    Looks like every one on here is at the BLP conference.

    We oldsters await some feedback from what is happening at the conference.

    Like

  20. NorthernObserver October 29, 2017 at 1:48 PM #

    @BT
    saw you had moved and were now living on Flagstiff Rd. In fact at de corner of I FILL Rd. Just up from Warn-her Rd. You gotta be careful, dey got nuff Clap up in dere, in fact Clapham Close.

    Like

  21. Jeff Cumberbatch October 29, 2017 at 1:58 PM #

    Other than Starcom’s sacrifice “on the altar of insurance against liability…” what were the merits of that settlement judgement?

    @ DPD, I suspect that you have identified the reason in your prefatory words. It is expensive to fight a defamation matter and an offer of amends by a defendant with the payment of an agreed sum as compensation will keep the matter out of court.

    Without re-litigating this matter, why was the first amendment dictum and news worthiness dismissed in this situation?

    @ DPD, Sex is an extremely private and hence intensely confidential matter, thus the jury’s eagerness to protect Hulk Hogan’s image. The public figure defence exists for defamation suits,,,I am not clear that it is a defence for an invasion of privacy or the infringement of rights of personality.

    Like

  22. Artax October 29, 2017 at 2:01 PM #

    Vincent Haynes October 29, 2017 at 1:25 PM #

    “Looks like every one on here is at the BLP conference.”

    @ Vincent

    Yeah…. so it seems………. and it appears Angela Skeete/Cox, Kevin and Fcuktured BLP are there as well…….. probably incognito and eavesdropping…..

    …………but then again………… Angela’s “mug” and that disgusting weave, would probably make her “stick out like a sore thumb.”

    Hahahaha!!!

    Like

  23. Sargeant October 29, 2017 at 2:24 PM #

    So much “freedom of expression” in the law books; so little observed in the mainstream Press. The politicians may want to keep the laws as they are for self- preservation but technology has outpaced even those laws updated 20 years ago. The main stream Press in Barbados and the wider Caribbean is cowed by the threat of lawsuits and since their main antagonists tend to be politicians they prefer not to rock the boat. Let’s face it none of them have the resources of a NYT or a Washington Post so why risk recrimination at the hands of vengeful politicians.

    The reticence shown by Bajans to self- identify in their criticism of the powers that be is part of our cultural history, we are not known as “chest beaters” and prefer to be in the background. I think those traits are in the main preferred by the majority of Bajans.

    Like

  24. Bush Tea October 29, 2017 at 2:56 PM #

    @ Sargeant
    ….and prefer to be in the background. I think those traits are in the main preferred by the majority of Bajans.
    +++++++++++++++++++++++++++++++++++++++++++++++++++++++++
    Yup!!
    …otherwise called brass bowl shiite hounds.

    Like

  25. Bush Tea October 29, 2017 at 3:00 PM #

    @ NO
    Boss…. wuh if Islandgal want to talk out our private business in public …
    Bushie is game…

    The Bushman will however, stop at the point of revealing the kind of language which she is wont to use at crucial times of arrival.

    ….at least one hopes that it won’t come to that…..
    LOL
    he he he

    Like

  26. Sargeant October 29, 2017 at 3:40 PM #

    @Bush Tea
    otherwise called brass bowl shiite hounds
    ++++++++++++
    So Bush why don’t you step to the plate in an act of self- immolation to show those Bajans that you are made of sterner stuff? It’s time to put up or shut up otherwise you are in the same boat as those “BBSH”.

    Like

  27. William Skinner October 29, 2017 at 3:53 PM #

    @ David et al
    Accrding to Jeff: “Of course, this opportunity for anonymity does not find favour with everyone, more especially when it is used as a cloak for scurrility and defamatory imputation. That may well be the price we all have to pay for a greater freedom of expression and indeed it may reveal more about the individual than the object of his or her calumny.”

    it is amazing how 100 people can read something and have one hundred different interpretations.
    I do not think/read that Jeff is endorsing scandaling, cussing or basically being extremely ill-mannered. I think/read that he is merely saying that accepting the monikers is the PRICE we pay in the name of freedom of expression.
    Note well what he says:
    “…….and indeed may reveal more about the individual than the object of his or her calumny.”

    Like i said , we read/think differently. So my dear David in the freedom of expression’s cause let us all JAs bray . Fortunately for me, I am not offended because I have always seen myself as a Jack ass, the evidence is clear- I have taken time to reply to you !

    Like

  28. David October 29, 2017 at 4:09 PM #

    @William

    Where has BU stated what you have suggested? The bottomline is that there is a downside as Jeff quite rightly stated where a few give anonymity a bad rep but it pales in comparison to the benefit it gives to citizens given the constraints of the status quo. Agree with you, try and read with understanding for crissakes.

    Like

  29. Well Well & Consequences Observing Blogger. October 29, 2017 at 4:23 PM #

    It will be a blessing for the younger generations when the colonially cloned…..all die out, then they can see and say they are truly free from the yoke of colonialism…and able to issue in a more productive way of life for themselves and their future generations.

    That is true freedom.

    Like

  30. Hal Austin October 29, 2017 at 4:37 PM #

    I think @David must understand that a difference of opinion does not mean an inability to read and understand. It simply means people do not agree.

    Like

  31. NorthernObserver October 29, 2017 at 5:43 PM #

    @BT
    your admirable prudence is appreciated.

    Like

  32. Well Well & Consequences Observing Blogger. October 29, 2017 at 6:19 PM #

    But it feels so satisfying in an enlightened and modern world that the colonially brainwashed and blighted are so impotent that the only thing they can do about it….is stew…lol

    Like

  33. angela Skeete October 29, 2017 at 6:27 PM #

    Artax October 29, 2017 at 2:01 PM #

    Yeah…. so it seems………. and it appears Angela Skeete/Cox, Kevin and Fcuktured BLP are there as well…….. probably incognito and eavesdropping…..

    …………but then again………… Angela’s “mug” and that disgusting weave, would probably make her “stick out like a sore thumb.”

    ……………………………………………………………………………………………………………………………………………..

    your curiosity to place or figure my identity is priceless

    My husband laughs and thinks it is intriguing .

    your portrait of myself is spilled over from David toothless comments and runaway imagination

    Like

  34. Vincent Haynes October 29, 2017 at 6:51 PM #

    Chuckle…….Interesting to listen to one of those perennial BU submitters in an act of the pot calling the kettle black persisting in this day and age singing the mantra……..the colonially brainwashed and blighted are so impotent…………lol……….I was glad that Bernard put it in its true perspective……..after 50 odd years these ignorant furners tellin us what we are and what to do……wuhlosss.

    Like

  35. Well Well & Consequences Observing Blogger. October 29, 2017 at 7:58 PM #

    Says the Curaçaoan….

    Like

  36. Crusoe October 29, 2017 at 8:03 PM #

    Good article Professor. People must remember that the limiting clauses in the Constitution were undoubtedly to protect, not the status quo per se, but institutional operations or personal reputations where necessary.

    The laws are not archaic, contrary to popular belief. With freedoms come responsibility. There is no unlimited freedom even in the natural world. Everything comes with limitations.

    Bear in mind that factual statement is a defense against defamation. What is the issue, if allegations made are based on fact?

    If they are not, then surely the individual making such allegations is being reckless.

    If facts are so hard to come by, then what is lacking is not the law that covers defamation, but the ability, persistence of the one who seeks to highlight issues and indeed the whole culture of the society, that sees such alleged acts as permissible.

    Learn to investigate, learn to gather data, be persistent in gaining those who are willing to deliver factual information over to those who would use it.

    Blaming the legislation is misguided and woefully inadequate.

    Like

  37. Well Well & Consequences Observing Blogger. October 29, 2017 at 8:09 PM #

    Crusoe…Unfortunately, it has always been misused to cover crimes against the people, or suppress the people. …..always, from inception.

    Like

  38. David October 29, 2017 at 8:22 PM #

    Change.org

    Heather Cole shared an update on The Government of Barbados: Abandon the proposal to build a $700M Plasma Gasification Plant in Barbados. Check it out and leave a comment:

    Petition Update

    Petitioning the AG of Barbados to Initiate 29 Probes

    PETITION UPDATE : ALL WE HAVE TO DO IS STAND UP FOR OUR RIGHT The Barbados Lobby OCT 29, 2017 — Many thanks to all those who have signed the petition. We have reached another milestone, 840 supporters. We have achieved the 500 signatures that merits that this petition be heard in Parliament but we still have a long way to go to take this movement across the island. In 1973 Bob Marley recorded a…

    Read full update

    Like

  39. Well Well & Consequences Observing Blogger. October 29, 2017 at 8:31 PM #

    The younger folk have taken up the mantle and are asserting their full inalienable rights…..

    ….the dead colonial heads have to fall back…

    These young people are strong, will lead a strong charge of other young people….and they will prevail.

    When they really get started, the colonial beast will have to run for cover…..all they needed was that push..

    Now I can get back to my champagned filled belgian chocolates more often….lol

    Like

  40. Well Well & Consequences Observing Blogger. October 29, 2017 at 8:34 PM #

    It makes ya feel good that our time on BU has not been wasted, I always knew those two young ladies had potential.

    Like

  41. Well Well & Consequences Observing Blogger. October 30, 2017 at 4:32 AM #

    We cannot have a bunch of tired old men, with wicked motives who are ready for adult diapers and bedpans determining the future for the majority Black population on the island and attempting to control generations of young people’s lives from their pending cold graves in the future.

    We have seen that movie before over the centuries and it had been, is and continues to be destructive to generations of living people or we wont be having any of these debates.

    The intent is to rip those already existing centuries old, cold long dead hands and proven evil intents and useless legacies out of the lives of the current populations and future generations and completely prevent any of the newly dying and dead from attempting the same evil intent as ther ancestors before them.

    … we know who they are and what they are planning., they know who they are….the hardest thing is to know.

    New legacies have to be created to replace the blighted evil, useless ones currently in place.

    Like

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