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.