The Jeff Cumberbatch Column – Two Cheers for Free Civic Expression
(With apologies to EM Forster)
In all my years of weekly musing, more than eighteen (18) now, I have scarcely ever written of my personal experiences during the week prior; out of both a desire not to bore my readers overmuch with details of a life of mostly studied contemplation and a natural bashful reluctance on my part to expose my personal business to a national audience, many of whom, I believe, could hardly care less thereabout.
However, I make an exception today. It has been a rather quiet week, given my professional obligation to grade a substantial number of examination scripts, attendance at a couple of meetings and trying to catch some of the televised cricket being played in the antipodean summer. Besides, I needed to write a column today if only to convey the compliments of the season to my readers.
One experience last week that I find worthy of comment is the conversation I had on a blog, trying to explain why justification is an absolute defence to an action for defamation and why the concepts of malice and reputation in the tort of defamation differ somewhat from their ordinary meanings in common English parlance. Ever the teacher, I suppose. Mindful of my obligations to the publisher and editor of this newspaper to maintain your interest, I prefer not to bore you with the drab details of my exposition on these topics, but one query and my consequent response forcefully brought home to me the disparity that currently exists in freedom of expression enjoyed by the parliamentarian and the man or woman in the street.
The question posed was-
Let me ask you one direct question, and I would like you to give me a yes or no answer, with as much or little explanation as you wish. Your answer should resolve this issue. The question is this.
If I published on my blog, incontrovertible evidence of corruption by a person, that can directly result in injury to the high reputation of that person, is there any way that I can be successfully sued for defamation in Barbados courts, by that person, under the current Defamation Act?
My response was as follows-
…To answer your question, I am taking it at face value, that is, that the evidence you possess is truly “incontrovertible”. The law of evidence is not too highly complex, but your evidence must first pass the test of admissibility -that it does not offend any of the established rules, is relevant, and is of probative value. In sum, that it assists the court in establishing your affirmation. That having been said, I would advise further that the best evidence in this matter would be a document that implicates the culprit by his or her own admission-as in his or her signature.
If the evidence is indeed “incontrovertible” in that sense, then no successful action for defamation may be sustained. Of course, it is not possible to prevent a lawsuit from anyone on any fanciful claim, but in this case, on the premises, it would be struck out as disclosing no cause of action likely of success. Again, be reminded that this is a legal opinion only. In mediaeval times, as I wrote earlier, an offended party might have resorted to the use of force of arms (vi et armis) to uphold his reputation. I cannot vouch that cognate action, perhaps in a more “civilized” fashion, might not be taken against you for your revelation.
The questioner thereupon took the decision not to publish the evidence-
…I think that the negative risks of following that opinion are far too great.
Of course the position pertaining to the disclosure of evidence of corruption has been improved somewhat with the provisions of the Integrity in Public Life Bill 2018, currently under parliamentary consideration, that permit a public official to make a protected disclosure as defined but, even so, the nature and circumstances of that disclosure as well as the entities to whom it may be disclosed are strictly regulated by the statute. It should be clear therefore that in no circumstance could such a disclosure, even with “incontrovertible” evidence be lawfully made in a public forum, except perhaps where it may be compliant with the principles governing “responsible communication” as that defence is now known.
Contrast this with the freedom of speech enjoyed by the parliamentarian speaking in in Parliament [but not outside] under the doctrine of absolute or parliamentary privilege that not even malice can vitiate.
Is this distinction justifiable in modern democratic society? I mean not to contemn Parliament and I am fully aware that this is one of the ancient privileges claimed by the honourable House, but should parliamentarians enjoy an unfettered freedom of expression when some may be fairly accused of defamation by innuendo were circumstances different? This is for your holiday contemplation, especially given that this state of affairs is unlikely to change anytime soon.
To all the readers of this column, frequent and otherwise, I should like to wish you sincerely a Merry Christmas and a 2019 blessed with good health and true prosperity.