The Jeff Cumberbatch Column – The Defence of Triviality

The frequently uttered assertion that “Barbados’ libel laws are archaic” betrays not only a pardonable ignorance of the provision of the relevant local statute that, over two decades ago, abolished the distinction between the action for slander and the one the for libel, thereby conflating them into a single action for defamation; but also involves making an unwarranted comparison with one anomalous aspect of US defamation law that does not find expression, at least by that name, in any other legal system of which I am aware; the public figure defence.

Simply put, this defence entails the notion that anyone deemed a public figure, [and the list is not closed] may maintain an action for defamation only if he or she can establish actual malice on the part of the publisher of the alleged defamatory imputation, that is to say, that the publisher knew the imputation was false or was reckless as to its falsity.

Of course this defence would apply to an action for defamation by government or other public officials, celebrities of, and other similar public figures but it may apply to others as well. Indeed, it has been stated, anyone, given the right circumstances could be considered a public figure. The term “public figure” is not limited to government officials and celebrities of whatever type. Some US courts have determined that bar owners, restaurateurs, accountants, and even insurance agents to be public figures in certain defamation cases.

Of course, the public figure defence has been tried on, notably without much success, in a few regional cases. But apart from the existence of this defence, the local defamation law barely differs from the law in the US.

This apart, the common law notion of responsible communication (originally responsible journalism) that now finds statutory expression in Antigua & Barbuda’s 2015 Defamation Act and is recommended for local reform allows some leeway for commentary on matters of public interest. Even so, the relative newness of our legislation means that Barbados has significantly broadened freedom of expression in recent years in this context. Indeed, our Defamation Act 1996 permits a publisher of material sued for defamation to rely on a greater number of defences, provided, of course, that their essential elements can be established, than anywhere else in the region.

One such defence to be found in the local Act and that does not find expression elsewhere in the region is that of triviality. Indeed, the availability of this defence has been expressly denied in the most recent Jamaican statute, its Defamation Act 2013.

It is a creature of the New South Wales jurisdiction and it does not impute, as its name would suggest at first blush, that the defamation of the claimant is to be regarded as trivial because it relates to a minor matter given his or her existing [bad] reputation.

Rather, according to section 6 of the local Act-

It is a defence in an action for defamation that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm to his reputation…”

Contrastingly, the Jamaica legislation provides at section 19 (2) –

It is not a defence to a claim in defamation that the circumstances of the publication of the matter complained of were such that the person defamed was not likely to suffer harm…”

In the single local decision in which the defence was unsuccessfully raised, Marshall v The Nation Publishing Co. Ltd., Worrell J. put the section firmly into context. According to the learned judge, [the section]

might have provided that there was a defence if in all the circumstances’ the person defamed was not likely to suffer harm from the publication. In such a case, his prior bad reputation would be proved to show that he was not likely to suffer harm from the instant imputation. But, as Moffitt P pointed out in his judgment [in Chappell v Mirror Newspapers (1984) Aust. Tort Reports 80-691] the section did not so provide. It provided a defence only where, by reason of more restricted matters, viz. the circumstances of the publication, the plaintiff was not likely to suffer harm.” (My emphasis)” and he relied on New South Wales case law authority to the effect that “the quality of the circumstances of the publication must be the factor which renders it unlikely that the person defamed will suffer harm […] the defence under section 13 is directed entirely to the circumstances of the publication [..] There should not be substituted a mere inquiry whether “in all the circumstances” the plaintiff will probably not suffer harm”.

As to the facts of the local case itself, Worrell J found that the publication had a very wide audience of thousands around the globe and therefore concluded, in my view rightly, that “the circumstances were such that the Claimant was likely to suffer harm to his reputation, and that “the defence of triviality must therefore fail.”

It follows that this is not a defence that will be readily available to those who defame others to a wide readership or audience. However, its availability as a defence to defamation thereby enlarges, even if slightly and technically, the degree of free expression that the local publishers of material to a limited readership or audience might enjoy.

23 comments

  • Thanks for this piece Jeff. The rise of citizen journalism – as one example – as a means to push back against the “establishment “is gaining momentum. Expect to see the defenders of the establishment pushing back against the unstoppable torrent of public opinion. The blogmaster in no way condones the reckless nonsense post because they have a computer and fingers. They will deserve what they get. Let us offer public discourse responsibly.

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  • Well we ALL need to know by now that this government is full of crooks and liars with False and Misleading Statements, in most any other Nations they would be jailed or Hanged, From the Crime Minister down, BFP

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  • I hope when the PUSH BACK turns international….that those who love to RUN to the court to file for libel and defamation for the FRIVOLOUS and to COVER UP THEIR CRIMES AGAINST THE PEOPLE ….read, ministers and too many lawyers……..can handle it..

    ah like the entertainment and LAUGHING AFTER THE FACT…too much to say another word..lol

    Liked by 1 person

  • @ the LUMINARY Jeff Cumberbatch

    Periodically, as with a clock striking midnight, you visit this topic and make new commentary on this matter.

    I sort of challenged because of the tin foil on my head so I going ask hou to bear with me here as i try go simplify the topic which you wrote above

    You said and de ole man quotes

    “…It follows that this is not a defence that will be readily available to those who defame others to a wide readership or audience.

    However, its availability as a defence to defamation thereby enlarges, even if slightly and technically, the degree of free expression that the local publishers of material to a limited readership or audience might enjoy…”

    De ole man is ever mindful that Barbados Underground AS GHE SOLE BASTION FOR FREEDOM OF SPEECH for the fourth estate, must be mindful of the litigation that attends defamation.

    In fact, de ole man will be the first to state that there are those who purposely defame public persons PURELY FOR THE PERVERSE PURPOSE OF RUMOUR MONGERING.

    I is not one of dem but i does write some uncomplimentary tings bout dem when i ready heheheheh

    I’d appreciate it if you would comment on this perspective briefly

    In an article here on BU they ARE featuring how some people have been getting disability benefits AS WELL AS PENSIONS WHICH IS DAID TO BE ILLEGAL.

    Someone hinted that the recipients are DLP SUPPORTERS ERGO THE ILLEGAL ACTIVITY DURING THE PREVIOUS ADMINISTRATION!

    So let me see if I have this right.

    Let us say that I’m commenting here on BU in a hypothetical article about the same most incompetent Prime Minister Barbados has ever known FUMBLES AND I write

    “Fumbles supported the illegal dual payments to DLP supporters?”

    Since he is a public figure, could he bring a case against me because I might have defamed his name?

    Or suppose de ole man was to write

    “It is said that ALL THE DLP MINISTERS in the last administration were crooks and were taking kickbacks from the illegal dual payments for disability AND PENSION.”

    “IT IS ALSO SAID THAT THE BLP MINISTERS ARE BIGGER CROOKS”

    “Prime Minister Fumbles was one of those ministers, so people may reasonably believe that, given the rumour, Fumbles received kickbacks”

    “Mugabe is now Prime Minister so we can reasonably assume that, since the illegal dual payments have continued for 15 months SHE HAS FOLLOWED IN THE FOOTSTEPS OF HER PREDECESSOR!

    Could you tell me if I am to understand that, given your article AND given my hypothetical remarks if, all the DLP former ministers, INCLUSIVE OF THE FORMER DUFUS PM, and the 26 Ministers, and Mugabe, would be entitled to sud me for defamation!

    Forgive me for brekking it down to this simplistic concept but I ent went school long and I gots to mek tings understandable

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  • @ the LUMINARY Jeff Cumberbatch

    As is my custom for these sophisticated articles de ole man came back to read it again CAUSE I SLOW.

    This is a really interesting article so I asked myself “myself, why has this article only garnered 4 submissions?”

    And myself answered and said.

    Half de people who read Jeff Cumberbatch DO NOT UNDERSTAND ONE SHY$E HE SAYS

    The second half do not give one curse word and the third half heheheheh dey dont want to appear INGRUNT!

    YOU said and I quote

    “…Simply put, this defence entails the notion that anyone deemed a public figure, [and the list is not closed] may maintain an action for defamation only if he or she can establish actual malice on the part of the publisher of the alleged defamatory imputation, that is to say, that the publisher knew the imputation was false or was reckless as to its falsity…”

    Now, as simple as that statement is YOU LOST DE REASERSHIP DEY WID DAT.

    and I gine explain

    Most of dem tinking bout demselves and dont unnerstand what you mean by “the publisher”

    So suppose de ole man com heah and say Jerome is a bullet!

    And BU PUBLISHES DAT JEROME DICKEY IS A BULLER!

    When you insert publisher dem thinks dat BU IS DE PUBLISHER so what relevance is your article?

    You of course have published an item which has two sides

    An academic side AS WELL AS A PREMPTIVE SIDE.

    heheheheh

    Ergo the response of the Honourable Blogmaster

    “…Thanks for this piece Jeff. The rise of citizen journalism – as one example – as a means to push back against the “establishment “is gaining momentum. Expect to see the defenders of the establishment pushing back against the unstoppable torrent of public opinion.

    The blogmaster in no way condones the reckless nonsense post because they have a computer and fingers. They will deserve what they get…”

    “…They will deserve what they get…”

    A WARNING AND A THREAT TO BU BLOGGERS DEFINITIVELY!!!

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

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  • “It follows that this is not a defence that will be readily available to those who defame others to a wide readership or audience”. Jeff Cumberbatch

    David
    September 1, 2019 7:25 AM

    “The blogmaster in no way condones the reckless nonsense posted by some because they have a computer and fingers. They will deserve what they get. Let us offer public discourse responsibly.”

    I have never attended a class in law so I originally thought it would be BU, as publisher, who would be sued by the “injured” party if something defamatory was written by a commenter on the blog.

    Given what the blogmaster has written above (they will deserve what they get) a question quickly sprang to my mind: Can a commenter on BU be sued for defamation without the blogmaster or BU being sued as well?

    Asking for a friend.

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  • @Walter

    Have your friend read this link.

    http://www.dmlp.org/legal-guide/publishing-statements-and-content-others

    Remember BU is a hosted blog, WordPress is domiciled in the US.

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  • Thanks, David.

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  • Normally, if someone is suing for libel, the author, editor of the publication, publisher, printer and distributor are all liable. In reality the publisher’s insurance would cover the printer and distributor – along with the staff. It may mean a higher premium.

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  • De ole man will explain the construct of this enquiry for you to understand Mr. Austin.

    Some years back Walter, an old friend of the Honourable Blogmaster made an essay to be a candidate for the Demonic Labour Party.

    A campaign against the DLP was mounted and Walter Blackman, a man of considerable skills and mental power, was a casualty of that battle.

    Granted that one knew Walter in a previous life but the Honourable Blogmaster made an intervention on behalf of his friend AND THAT MATTER WAS PUT GO REST, for me, BUT NOT FOR WALTER.

    He “invested” a lot in this campaign to nd a political big win jn GHE Barbados landscape BUT WALTER, in his inimical style, WILL NOT LISTEN to what was clear, THE DLP HAD TO BE KILLED COMPLETELY.

    It was nothing personal.

    The scenario was and is, “let people see the type of Dictator Mugabe is, give her the reigns and let them understand THAT THEY MUST VOTE FOR COMPETENCIES not popularity and promises!”

    Here is Walter in 2019 returning to his vomit LIKE A DOG!

    And he does not see that even now THE HONOURABLE BLOGMASTER who is his friend, now sees the very vindictive nature of the man.

    Walter Blackman had a tag team of 10 people who kicked his ass daily on Barbados Underground BECAUSE HE SOUGHT TO GET ELECTED AS A DLP REPRESENTATIVE.

    That could not work BECAUSE MY GOD SAID IT WOULD NOT HAPPEN!

    So here we are examining vomit and IP addresses and defamation and wheels within wheels where specific allegiances are coming into play here.

    Imagine that the Honourable is so quick to quote George Linnaeus Banks because it looks nice on the site but in the same breath wishes to effect a “Khassogi?”

    But then again they are quick to chant bout dem living pun de rock with no place to go while de ole man elsewhere.

    Here is my oath Honourable Blogmaster.

    I was Born a Barbadian as you were.

    I live the Pledge of Barbados AND WILL DIE LIVING THAT PLEDGE.

    What you are aiming for I AM ALSO AIMING FOR, and if you give it one year, YOU WILL SEE ITS RESULTS!

    I have NOT LEFT YOU TO SUFFER UNDER MUGABE, give de ole man time.

    Blackman made his choice AND SUFFERED FOR IT.

    What he wanted to perpetuate IS WHAT IS CAUSING BARBADOS TO SUFFER David

    And neither of us could permit that.

    You Sir, Honourable Blogmaster facilitated the fight then just DO THE RIGHT THING NOW!

    Thd choice is yours, weigh them carefully!

    Like

  • Am sure this family of criminals who loved to dip their hands in public funds and then write it all of as though it belonged to them…are planning to sue for libel too..

    “A court in Honduras has sentenced former First Lady Rosa Elena Bonilla to 58 years in prison.

    Bonilla, 52, was found guilty of misappropriating $779,000 (£635,000) from international donations and public funds during the four years her husband Porfirio Lobo was in power.

    Prosecutors said she had used the money to buy jewellery and to pay for medical bills and her children’s tuition.

    Her lawyer said Bonilla was innocent and would appeal.

    Bonilla was arrested in February 2018 following an investigation into the disappearance of money from public funds, including a budget designed to provide shoes for poor Honduran children.

    Bonilla’s personal assistant, Saúl Escobar, was also sentenced to 48 years in jail for fraud.

    Neither Bonilla nor her husband were at court for the sentencing.

    It is not the first time a member of the Lobo family has been sentenced. Porfirio Lobo’s oldest son, Fabio, was sentenced to 24 years in prison in 2017 after pleading guilty to charges of conspiring to import cocaine to the US.”

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  • As a matter of fact, come election 2023….we will be sure to REMIND..the 60 thousand give or take voters in Barbados that the VOTE BEGGARS..aka politicians, ministers, lawyers etc…once ELECTED and have diplomatic passports and access to the treasury and PENSION FUND…like to SUE the SAME PEOPLE WHO ELECTED THEM… for libel and defamation of character and all types of shite…once ya complain about their wicked criminal corrupt actions and practices…against said BLACK POPULATION……….and we will see how well that goes down with VOTERS….

    yall done know what a wide audience FB reaches, whatsapp reaches an even wider audience…

    and ya done know a short memory is not one of my weaknesses so am unlikely to forget..

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  • And even more dangerous than the Sedition Act and libel and defamation laws which are ABUSED by corrupt governments and wicked lawyers…until they find themselves in the hands of ICC facing trial for CRIMES AGAINST THEIR PEOPLE…..are bloggers WITH EQUALLY WICKED INTENT..

    Those who were GENUINELY concerned about the Natalie Critchlow fire death, be aware that it is finally looking like she will be repatriated to UK to her family.

    Now to answer the 2 BU blog crabs twiddle DUMB, Piece and twiddle DUMBER, SSS. i had decided that in RESPECT to Natalie’s grieving and emotional family back then, to cut short your crabfest, for the sake of DECORUM, yes, that is actually a word, some of us know about it and some DON’T, there is a time and place for everything and some of us are well aware of such, some are not and as some of you love to score cheap blog points, to impress ya over bloated egos, i had no intention of enabling you at the expense of a grieving family no matter what ya called me, am aware like that.

    Natalie’s ELDERLY father was trying to retrieve her for return to UK, he was given the run around and that was only when some old disease minded, TIEFING QC/lawyer on the island was not trying to EXTORT thousands of dollars from this vulnerable man. The attempt was to get the father to sign a bunch of papers, most of which he could not understand anyway and FORCE HIM to cremate Natalie in Barbados, which is NOT THEIR PLACE and AGAINST the direct wishes of her next of kin..her CHILDREN who wanted her returned to UK…the family, EXPOSING THIS INTENT..at the time, stopped that wicked plan and they then ended up having to use another route to get her body home.

    Those of us who were aware of this state of affairs through the family watched you two SELF SERVING CRABS…and the 2 sidekick mini crabs Simple and Pedant, the blog ANE, Simple, be glad i did not call u the female version…..call that GRIEVING father…a LIAR…without having any access to the facts of what her family experienced in this whole sordid episode and which was an already emotionally charged affair, while thinking ya were GLEEFULLY calling me a liar in ya dumb and dumber states of trying to one up on the blog…ya made yaselves PROUD. The family has had weeks of climbing the mountains of small island idiocy just to get this far, with genuine help from the very few.

    Ya should hang ya crab claws in SHAME that ya have been thus exposed, ya can continue calling that grieving father a liar without having any facts to what HE, not me, experienced, but i know that CRABS should remain in their HOLES and only venture out to ATTACK periodically and for the RIGHT REASONS.

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  • #nowidiotEnuffetalknowstoo

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  • Sista Abigail
    You said the government wanted to cremate the body without permission from the family. Now you’re saying a lawyer was trying to get her father to approve her cremation. I done.🤐

    Like

  • Can you understand what i wrote or not…

    Plain as day..let me separate it for you…

    Natalie’s ELDERLY father was trying to retrieve her for return to UK….. he was given the run around..

    and that was only when some old disease minded, TIEFING QC/lawyer on the island was not trying to EXTORT thousands of dollars from this vulnerable man.

    The attempt was to get the father to sign a bunch of papers, most of which he could not understand anyway and FORCE HIM to cremate Natalie in Barbados, which is NOT THEIR PLACE and AGAINST the direct wishes of her next of kin..her CHILDREN who wanted her returned to UK

    the family, EXPOSING THIS INTENT..at the time, stopped that wicked plan and they then ended up having to use another route to get her body home.

    that should helah done know yall slow…and you call yaself Counsel Rests…steupppsss.

    and i stand by every word…

    so where in any of that sentence do you see the tiefing lawyer trying to force a cremation…..show me…

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  • Wuh it was not me cobbled together a HOT AND SWEATY press conference and DRAGGED OUT the poor COP to LIE to the whole nation…in front of cameras, hid the video of Natalie’s dying statement and pretend they knew nothing about it, check the hot and sweaty ones who called the press conference for that info…i told you what i know..

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  • Always ready to bring libel, defamation and other human rights violating legislative laws to lock up their own proplem but are quick to INTERFERE in the judicial/court process to release CRIMINALS WHO ARE NOT BLACK..

    Coverley is a known drug hole for whites and others who are not labeled black.., wuh if they won’t lock up the lead PARASITE for the death of the Holder child, the wicked black governments will NEVER lock up their BRIBERS for HARD drug trafficking or anything else that is destroying the island and people…that is why the black governmental WICKEDNESS MUST ALWAYS BE EXPOSED…for the world to see.

    “Not being devil’s advocate but with the recent situation of a male student at a private school in Barbados wanting to identify as a female and dress accordingly garnered alot of discussion for and against it . Alot of energy and emotions were garnered but I am curious about something . For legal purposes let me use the word allege . What about the Ross International medical student who allegedly caused a disturbance and allegedly was found to have marijuana , cocaine and meth yet was reportedly allowed to report back to court after being ordered to attend drug rehabilitation , and not being remanded to prison . This did NOT receive alot of media attention and quickly died a natural death . Where is the same energy in relation to these alleged incidents ?”

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  • Must be corrected and REPEATED FOR EFFECT..

    Always ready to bring libel, defamation and other human rights violating legislative laws to lock up their own PEOPLE but are quick to INTERFERE in the judicial/court process to release CRIMINALS WHO ARE NOT BLACK..(African descended)

    METH…is dangerous hard drugs and should not even be on the island, but has been for quite some time…and mostly at Coverley.

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  • Congratulations Jeff.

    Your posts and comments on BU will be missed.

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  • Older voters who are AWARE and younger voters who are less likely to be FOOLED by toxic black governments must TAKE NOTE..that your governments create libel, sedition and defamation laws SPECIFICALLY to GAG you from reporting THEIR CRIMES against you and generations of your children.

    http://www.tribune242.com/news/2019/apr/03/us-report-names-bahamas-money-laundering-jurisdict/

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  • IN ADDITION, despite all the ACCUSATIONS with PROOF that the US levels at these small states re money laundering, human trafficking and crimes that should see them all locked away in prison for DECADES…do any of you see any one of these uppity negros in any of those parliaments DEVELOP any BALLS to SUE the US for libel or defamation.

    And FURTHER…with all the billions in money laundering, drug trafficking etc that they and their BRIBERS have been involved in and REAPING for DECADES…ya MUST ask yourselves WHY is THE MAJORITY POPULI, the black population STILL STEEPED IN NEVER ENDING POVERTY and a hand to mouth existence.

    it is a pattern, black leaders only terrorize, victimize, STEAL FROM and lock up Black PEOPLE.

    “By KHRISNA RUSSELL

    #Deputy Chief Reporter

    #krussell@tribunemedia.net

    #THE Bahamas was listed among major international money laundering jurisdictions in 2018, a newly released United States Department of State report said, highlighting sources of laundered proceeds included firearms trafficking, human smuggling and tax fraud.

    #At the time the report was compiled, the US noted the country did not maintain official records of company beneficial ownership or require resident paying agents to tell domestic tax authorities about payments to non-residents.

    #The report recommended demonstrating risk-based supervision of non-bank financial institutions and ensuring timely access to adequate beneficial ownership information by addressing the anti-money laundering/combating the financing of terrorism regime.

    #It was also suggested that the quality of financial intelligence unit products be increased to better assist law enforcement to investigate and prosecute all types of money laundering.

    #The findings were detailed in the March 2019 Bureau of International Narcotics and Law Enforcement Affairs – International Narcotics Control Strategy Report Volume 2 on Money Laundering.

    #Countries listed alongside The Bahamas included Jamaica, Cayman Islands, Barbados, Belize, Canada, Costa Rica and China among several others.

    #A separate report “

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