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Submitted by Grenville Phillips II

Under this act, anyone who revealed genuine cases of corruption, with incontrovertible evidence, could be found guilty of defamation and punished accordingly. However, the Act protects politicians if they talked about it in parliament*

 

I will say it again, Grenville needs a legal advisor, and not only to serve as AG in any unlikely Cabinet of his. If there is incontrovertible evidence of the imputation made, the defense of justification will absolve any defendant in a defamation action, And there are defenses even to criminal libel-

 

 

T

he defence of comment and the defence of privilege (whether absolute or qualified) shall extend to a prosecution for criminal libel as they respectively extend to an action for defamation.

      – Jeff Cumberbatch

I note that Jeff Cumberbatch is querying my understanding of the Defamation Act, which has led David to cast aspersions on my motives. Please note that I am offering myself only once more to the public as a politician, and I will not tarnish my reputation by lying to the public. Let me try to engage Jeff in an honest discussion.

I claimed that the act was cleverly written to allow a person, who is speaking the truth about an allegation of corruption, to be charged with defamation. Jeff disagrees. So Jeff, let us present and discuss evidence rather than make disparaging remarks.

1. Defence of Truth

I refer to sections 7.1 and 7.2.

  1. (1) The defence in relation to an action for libel or slander known before the commencement of this Act as the defence of justification shall, in relation to any action for defamation brought after the commencement of this Act, be known as the defence of truth.

(2) Where an action for defamation has been brought in respect of the whole or any part of matter published, the defendant may allege and prove the truth of any of the charges contained in such matter and the defence of truth shall be held to be established if such matter, taken as a whole, does not materially injure the plaintiff’s reputation having regard to any such charges which are proved to be true in whole or in part.

My interpretation is that someone accused of defamation for, say, accusing someone of corruption, may use a defence of truth. (7.1) However, the defence of truth supported with incontrovertible evidence may not work if the plaintiff’s reputation is materially injured (7.2).

I am suggesting that by not allowing truth to be a absolute defence, a loophole has been introduced in the Act to find people, with truth on their side, guilty of defamation. Jeff, do you have another interpretation.

2. Qualified Privilege

I refer to sections 11.1 and 12.

  1. (1) Subject to this section, the publication of any report or matter referred to in the First Schedule shall be protected by qualified privilege.
  2. The defence of qualified privilege shall be defeated if the plaintiff proves that the defendant in making the publication complained of was actuated by malice.

My interpretation is that if, for example, an allegation of corruption with incontrovertible evidence was made at a public meeting (First Schedule 12.1), then its publication is protected by qualified privilege. However, the defence of qualified privilege can be defeated if the publication was found to be actuated by malice.

I am suggesting that by allowing malice to trump truth, a loophole has been introduced in the Act to find people, with truth on their side, guilty of defamation. Jeff, do you have another interpretation.


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354 responses to “Defamation Act: A Different Interpretation”

  1. Vincent Codrington Avatar
    Vincent Codrington

    What is the intention of this submission?

  2. peterlawrencethompson Avatar
    peterlawrencethompson

    Hmmmm… it seems to me that Grenville has a point. I am hoping that Jeff can prove us wrong.

  3. peterlawrencethompson Avatar
    peterlawrencethompson

    @Vincent
    For people like you and me who do not obscure our identities behind pseudonyms, a clear understanding of the defamation law is important if we are to avoid prosecution.


  4. “By allowing malice to trump truth”

    The same standard that is applied to public officials in America

  5. Vincent Codrington Avatar
    Vincent Codrington

    @ PLT

    Even when one gets a well articulated opinion,the justice system is such that the persecution is no different from the prosecution.


  6. @ Vincent
    Even when one gets a well articulated opinion, the justice system is such that the persecution is no different from the prosecution.
    +++++++++++++++++
    What justice system?

    We have NO justice system boss.
    The REALITY is that those with power and money will ALWAYS win….. or at least delay until you are broke or fed up or dead.

    Jeff is speaking of PURE theory – the stuff of the class room.

    Grenvile speaks of our REALITY ….when MALICE and GREED are in control.


  7. @ Mr. Vincent Codrington

    You are correct when you ask what is the purpose of this submission

    “It is to show the arrogance of Grenville Phillips II who saw a remark by The Luminary Jeff Cumberbatch on another of his submissions and TO SHOW HOW MUCH OF A BADWORD HE IS, asked for and was granted a whole article to respond to what as a blog submission on the other blog

    Steupseeee

    What we have to see is if THe Luminary will be lured here to comment on this….

    Let us watch and see


  8. @Grenville

    If you aspire to be a member of parliament then it means you will have to acquaint yourself with the strategies required to achieve the goal. Being elected is not a simple case of stating a position and the electorate – in the main ignorant about matters of state – will elect you. To proceed on this basis is naive at best.

    This is a response to you taking umbrage to a comment made by the blogmaster on the other blog. There was no malicious intent behind the comment except to suggest your tone/content post the last general election has shifted a little. You should acquaint yourself with Machiavelli writings and the extent modern day politicians seek to manipulate the minds of the large ‘ignorant’ segment of the electorate.

  9. NorthernObserver Avatar

    Doesn’t the Stormy Daniels proceedings fall under this category?
    As distasteful as it maybe, I think most people believe she is telling the truth about her relations to DT.
    When he then accuses the truth teller of lying, isn’t the accusation of being a liar not defamatory?
    Legal is not my thing, so I might be off base.


  10. Does defamation apply to parliamentarians ?
    Under parliamentary privilege anything can be said about anybody without fear and there is no recourse even if the statements are proven to be wrong.
    Once again we are back to animal farm. The elected leaders can safely scandal anybody while the rest of us are supposed to just shut to hell up !!


  11. Hi David:

    I have no such aspirations in the same manner that I have no aspirations of being a life guard, a fireman or security guard. However, if someone is drowning, I will attempt to save them, if a building is on fire, then I will attempt a rescue, and if a crime is being committed, I will intervene. Why? Because I genuinely care.

    The country is in trouble and I tried to help by offering my best advice. Our former PM explained that the only way to be heard was to get into the political trench so here I am – perhaps I should have known better since both parties seem to have no interest in hearing good advice. For completion, I will offer myself only once more.

    I am not sure whether my tone has changed that much. I have always pointed out that both B and D accused each-other of gross corruption and mismanagement, and I simply presented evidence to support their accusations. I must tread carefully because of this relevant issue of defamation – which is why I cannot follow every well-intentioned suggestion to ‘go after’ people.

    Defamation is an important issue, since as publisher of this important on-line forum, you are exposed. On my blog, I redact defamatory comments of commenters to avoid defamation claims – because they would target me. That is why a person like ‘Piece’ is so irresponsibly dangerous – almost every post is defamatory but he hides in anonymity leaving the publisher to take the fall. He appears senior enough to know what he is doing, but he does not seem to care.

    Jeff has used sniper-like disparaging remarks since I started on this political road. I am now accustomed to political operatives who either drop disparaging comments and do not stay to defend them, or who try to claim that 1+1=56.382 and will never budge from that position regardless of the contrary evidence presented.

    I look forward to engaging in an honest adult discussion with Jeff on this critical issue that is relevant to us all.

  12. Vincent Codrington Avatar
    Vincent Codrington

    @ Grenville 11

    I share your concerns about being maliciously taken to court for disclosing matters that may be the truth but legally actionable. My suggestion is to deal with the issues and avoid “going after personalities”. Tread carefully.

    More importantly a legal opinion is just a legal opinion. Very often it bears no relationship to the outcome of a case. The judge or the jury exercise their discretion ,another opinion. There is nothing definitive about legal outcomes..


  13. @ David
    Grenville is a good engineer, an honest Bajan and a decent person.
    But he is no politician…. never will be,
    …and HE HAS NO NEED TO BE either – because he is good and successful at what he does.

    What he has done is to show up the rest of us brass bowls (who seem to WANT to be politicians), but who lack the balls to stand up and be counted.

    Most engineers who reach Grenville’s status don’t even FART on the plebs of society – far less expose themselves to criticism from shiite hounds. Grenville is a true HERO – if he was dishonest, he would be able to exploit the albino-centric shiite systems that we have – just like innotech has done… he is too honest.

    …but he is no politician.

    The ONLY person currently on the horizon with what it would take to save us from our catch 22 situation is….
    You guessed it…

    CASWELL.

    As we speak…
    Caswell would have prosecuted from Mia, to Froon, to Owen to David Thompson …and all others -dead or alive- who broke ANY of the many rules that the shiitehounds sat down in Parliament and made.
    Shiite…
    Caswell would even have prosecuted himself – if it was found that he broke one of the many shiite rules… (ALL of which he seem to know by heart…)

    BUT
    Caswell refused to BUP… so we are such between B rock and D hard place…
    …so our donkey is headed for grass.

  14. Vincent Codrington Avatar
    Vincent Codrington

    “Definitive = “certain” in the context used above.


  15. @ Vincent
    There is nothing certain about legal outcomes..(in Barbados)
    +++++++++++++++++++++++++++++++++++++
    Boss, you just as circumspect and reserved as Jeff.
    Wunna fellows are much TOO decent to deal with the CHAOS the we currently face.
    Check Caswell…

    The TRUTH is that our legal outcomes are nothing more than a mess of shiite.
    The CCJ points this out time after time…..
    Common sense dictates that we are being served shiite.

    The LONG delays and inconsistent decisions reinforce the jobby…
    We have MURDERERS whose trials cannot start for YEARS… then we hear of Pratt and Morgan…
    We have DPPs who CANNOT see CLEAR criminality in things HIGHLIGHTED in the Auditor General report…. but run around behind little people smoking shiite grass
    We have an AG SERIOUSLY talking about abandoning old outstanding cases (including land disputes etc) in order to make the records ‘look good’

    Tell Bushie how the situation could POSSIBLY get worse….

    Boss
    Yours is the understatement of the decade.
    …and Jeff is talking pure THEORY….
    ..suited for his students who will go on to become seasoned scam artists like their predecessors.


  16. Bush Tea

    I never thought I would agree with anything you make public on BU, but I share your opinion regarding Caswell Franklyn Bushie … his track- record shows his commitment to the people he vigorously represented … he is a no-nonsense type of individual … and a man of principle … the kind of individuals we wish to have if we are to find our place in the world once again …


  17. Agree Bushie, Grenville has done a lot if we were to compare to 90% of politicians.


  18. Yes, Grenville does have a point but I still think the issue is with proving the whole rather than just part of the allegations made against the Claimant. Jeff will clear up.


  19. @ lexicon
    Bush Tea…I never thought I would agree with anything you make public on BU,
    +++++++++++++++++++++++++++++++++++++++++++++++++++
    Can we please keep it that way Lexi…?
    Thank you.
    …and If you EVER happen to agree with Bushie …perhaps you can just keep it to yourself…?
    LOL
    ha ha ha

  20. de pedantic Dribbler Avatar
    de pedantic Dribbler

    @Northern, this layman agrees with your post re similiarities of the Daniels issue but really what has substantively changed re defamation law.

    As you also know public figures of senior govt or others of elected status have some “privilege” in making statements about others in the public space…they can’t make malicious falsehoods of course but the remark about Daniels and the man stalking her was well within that scope of the law…certainly according to the judgement.

    @BushT, yours is a mouthful re Mr Phillips and his level of success and thus lack of need to offer himself…but it’s also a complete exercise in non-speak baladerdash…. Aren’t many pols hewed from great personal success…of course many also use it as an avenue to riches but it’s quite simplistic to suggest Mr Phillips can be absolved all misteps, inept policies or a strangely thin skin in this political arena because he is a man of success . BS!

  21. de pedantic Dribbler Avatar
    de pedantic Dribbler

    Phillips has done great stuff and must always be commended for every great act…but surely that doesn’t mean he can sling from the lip as he pleases without some push back.

    His intrepretaions as noted above are reasonable and haven’t not read the Act myself I also look forward to a detailed review from the Dean.

    That said, I found the other note from Phillips to be quite heavy on the ‘OhReally’ cheese spread.

    If a public official (Phillips) opines that he will not employ a lawyer in his advisory council (or words to that effect) and further to that proposes criminal and civil reform policies that at a basic level are totally unenforceable I expect that a law professor may employ various tactics to inform and interrogate the person and the policies.

    I do not recall reading any supposedly “sniper-like disparaging remarks” from the Dean and in so far as the professor has been appointed to various commissions and public fora by politicians one assumes he can be considered a “political operative”…
    BUT…there is NOTHING about the man’s writings or public opinions that suggests he operates in the political swill-pool that causes him to “drop disparaging comments” for their sake only.

    I find this aspect of Mr Phillips public persona quite ridiculous … ANYONE who offers a contrary opinion to his views is considered a political hitman against him.

    Steeupse.


  22. I place my hand on a Bible and then say ” I solemnly, sincerely and truly declare and affirm that I will tell the truth, the whole truth and nothing but the truth ”

    How can “state a fact and then be sued for defamation in a court of law where I am sworn to ” tell the truth, the whole truth and nothing but the truth “?

    I look forward to the opinion of Jeff Cumberbatch as he has demonstrated that he always gives us hs expert legal opinions.


  23. DPD
    WITH RESPECT TO THIS ARTICLE IN THE LOCAL NEWS DO YOU THINK THAT AN EMERGENCY POST MORTEM IS NEEDED?
    https://barbadostoday.bb/2018/12/13/death-mystery/


  24. I place my hand on a Bible and then say ” I solemnly, sincerely and truly declare and affirm that I will tell the truth, the whole truth and nothing but the truth ”

    How can I state a fact and then be sued for defamation in a court of law where I am sworn to ” tell the truth, the whole truth and nothing but the truth “?

    I look forward to the opinion of Jeff Cumberbatch as he has demonstrated that he always gives us hs expert legal opinions.


  25. I cannot believe that in this day and age we are debating if what is said in parliament or the courts is libellous. What is more worthy of discussion is that Barbados is the only civilised country in which the dead can be libelled, as I understand it..


  26. BEHOLD THE PEOPLE CLAMOUR FOR THE LUMENary!
    BUT THE LUMENary APPEARETH NOT
    MY ADVICE IS THIS
    “Shout louder!” “Surely he is a god! Perhaps he is deep in thought, or busy, or traveling. Maybe he is sleeping and must be awakened.” AH LIE?
    LOL
    ha ha ha


  27. @ My fellow CanBajans,

    ” Defamation refers to harming another person’s reputation by making a false written or oral statement about that person to a third party.”

    ” a true statement cannot be defamatory ”

    https://www.cjfe.org/defamation_libel_and_slander_what_are_my_rights_to_free_expression


  28. In some countries a true statement cannot be defamatory.

  29. Vincent Codrington Avatar
    Vincent Codrington

    The problem here is that some things are not debatable. We may be straining on a gnat.

    @ Hants at 10 :51 AM

    What is truth?
    We can believe that something is true. Does it become true because 90% of a total population believe it to be true?


  30. My interpretation is that someone accused of defamation for, say, accusing someone of corruption, may use a defence of truth. (7.1) However, the defence of truth supported with incontrovertible evidence may not work if the plaintiff’s reputation is materially injured (7.2)

    I am suggesting that by not allowing truth to be a absolute defence, a loophole has been introduced in the Act to find people, with truth on their side, guilty of defamation. Jeff, do you have another interpretation

    Truth IS in law an absolute defence to an action for defamation. It serves to defeat the “presumption of falsity” that holds that everyone has an impeccable repuation, and thus any defamatory imputation is presumed to be false or untrue.

    If the imputation is then established by the defendant on the evidence to be true, the presumption is rebutted. The claimant’s reputation, such as it is, and not as it is presumed to be, would therefore not be materially injured as you assert.


  31. My interpretation is that if, for example, an allegation of corruption with incontrovertible evidence was made at a public meeting (First Schedule 12.1), then its publication is protected by qualified privilege. However, the defence of qualified privilege can be defeated if the publication was found to be actuated by malice.

    I am suggesting that by allowing malice to trump truth, a loophole has been introduced in the Act to find people, with truth on their side, guilty of defamation. Jeff, do you have another interpretation

    Your interpretation may be incorrect if by “public meeting” you mean a political meeting..See section 33 of the Act-

    A defamatory statement published by or on behalf of a
    candidate in any election to Parliament shall not be deemed to be
    published on a privileged occasion on the grounds that it is material to
    a question in issue in the election.

    On this basis, malice does not arise at all, since the statement is not even made on an occasion of privilege. In any case,qualified privilege permits the maker of the statement to defame another person, so long as it is done without nalice. What is so wrong with that? Freedom of speech is not absolute, and even in the US where one is permitted to defame public figures at will in the name of the First Amendment, the presence malice will always defeat the right of the speaker to so.

    See below-

    n a unanimous decision, the United States Supreme Court ruled in favor of the New York Times. In order to prove libel, a “public official” must show that the newspaper acted “with ‘actual malice’–that is, with knowledge that it was false or with reckless disregard” for truth. The Court asserted America’s “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Free and open debate about the conduct of public officials, the Court reasoned, was more important than occasional, honest factual errors that might hurt or damage officials’ reputations.


  32. Jeeeeeefffff!!!!!!!


  33. *Jeff has used sniper-like disparaging remarks since I started on this political road. I am now accustomed to political operatives who either drop disparaging comments and do not stay to defend them, or who try to claim that 1+1=56.382 and will never budge from that position regardless of the contrary evidence presented.

    I look forward to engaging in an honest adult discussion with Jeff on this critical issue that is relevant to us all.*

    In response to your expectation, so do I. Are any of my remarks that you describe as sniper-like, untrue or malicious?


  34. @Jeff

    Would you advise Grenville to take this offline to line up his ducks?


  35. @Jeff

    Would you advise Grenville to take this offline to line up his ducks?

    @David, I have no stomach for this fight, sorry!

  36. Vincent Codrington Avatar
    Vincent Codrington

    @ Jeff at 12:33 PM

    I concur with your decision.


  37. In some countries a true statement cannot be defamatory.(Quote)

    Name one liberal democratic country in which this is the case.


  38. Apologies. Mis-read. The statemen is correct .


  39. Thanks Jeff, hopefully what you have posted has laid the matter to bed for Grenville.


  40. This is just tangentially related to the subject but I found this interesting, free speech means different things in different jurisdictions. If a motorist did this in Bim he would be hauled before a magistrate and would be fined or sent to Dodds.

    Note he was cited under a noise violation ordinance in Barbados he would be charged with cursing the Police (can’t remember the name of the exact law)

    http://www.fox2detroit.com/news/local-news/jury-finds-man-facing-jail-after-playing-f-the-police-not-guilty


  41. Sergeant

    In America it is a crime to play load music in a residential area … but you can play it as load as you wish on the highways and byways because it disrupts no one…


  42. Sergeant

    Another thing you must first understand about America is this: there are federal, state and municipal laws … one city for example may have an ordinance which says you cannot cut your lawn with a lawn mower before 10:00 am… an another city ordinance may say 11:00 am … so it depends on where you live and what the city ordinance says …


  43. I support Jeff 200%. Too many know-it-alls pollute the blog with a lot of NONSENSE, that’s why I don’t even bother to debate, just poke fun at the igrunce. Anyone that witnessed GP’s appearance before the select committee on IL knows he’s out of his depth. Doubt me, ask Caswell.


  44. Enuff

    Because you are dat smart … I got yah … law is one of the more easier subjects to learn … no disrespect but it takes very little brains to read and interpret law … any fool can do it …


  45. Enuff

    Every black man in America is a certified paralegal and not by choice but by circumstances … listen! I would eat a lot of those lawyers in Barbados for cake … and I only represented myself once in housing court and eat up the landlord lawyer/ lier …


  46. @ Grenville Philips II

    As i am prone to say and will say again here

    You impress me as being a man who projects integrity but, when push comes to shove, you show youself as “ballsless”.

    YOU PRETENT TO BE OFFERING YOURSELF FOR NATIONAL SERVICE, and in this regard, are quick to allude to your salvation regime employing vacuous statements about how “someone from the World Bank read your solutions for Barbados (pun intended) and gave you 100% passing grades”

    Yet you refuse to either (i) share the said document and its mechanics, or (ii) the person(s) name(s) “because you ent want to get no one in trouble”

    You are lukewarm, some would say bordering on putrid, and most people do not consume liquids or food that is either.

    You DO NOT LIKE ANYONE WHO SAYS YOU ARE TALKING SHYT&&& yet, instead of detailing the shyte that you have expounded, you either stay in the shadows, like the politiical bandit that you have conclusively shown yourself to be, or you return to the matter and use your sub voce commentary to insult your detractors.

    You DO NOT HAVE THE QUALITIES TO BE A MP for Barbados and I will make it my business to repeat this every chance I get.


  47. @ the Honourable Blogmaster your assistance please with an item here thank you


  48. @ Lexicunt

    I think that you miscounted the times that you represented yourself in court

    Once was in the housing court when you burnt down your condominium building

    And the second time was with the case when you unplugged the life support machine to plug in your smartphone to call the same housing court and beg for a postponement


  49. Piece

    Old you know you don’t want none yaa me rite… ?

    So gaa back and teach yah grandson who is aa cuntputa Wiz how tah be yaa man …and if yah need any help I got ten pounds of starch tah stabalized he backbone … because he love daa funny man business …


  50. @ Vincent Codrington,

    Since I am a CanBajan living in Ontario I did a little research on defamation laws in Ontario.

    https://www.cjfe.org/defamation_libel_and_slander_what_are_my_rights_to_free_expression

    I rely on my understanding of everything Jeff Cumberbatch writes as it relates to Barbados.

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