Tag Archives: Freedom of Expression

The Jeff Cumberbatch Column – Anti-social and Distasteful…but Criminal?

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“…[P]unishment for mere mental states is intrinsically unjust because such punishment would be a form of mind control – Gabriel Mendlow, “Why is it wrong to punish thoughts?” [2018] 127 Yale L. J. 2342

It is by now beyond dispute that the freedom of expression constitutionally guaranteed to everyone is not absolute. Not only are there the express limitations or qualifications provided in the Constitution itself, but there also exist limitations imposed by common law and statute and by considerations of decency, situational appropriateness and what may be generally regarded as good societal conduct.

Given the significance of free expression in a democratic society, these limitations are closely policed and in the inevitable tension between the freedom and its proscription, it may be observed that the modern trend bends towards the increase of the freedom rather than towards its diminution.

As President Saunders of the CCJ had cause to observe in a recent decision-

Because it underpins and reinforces many of the other fundamental rights, freedom of expression is rightly regarded as the cornerstone of any democracy. A regime that unduly constrains free speech produces harm, not just to the individual whose expression is denied, but [also] to society as a whole. On the one hand, the human spirit is stultified. On the other, social progress is retarded. The fates of brilliant persons like Galileo, and Darwin, and countless others, sung and unsung, betray a familiar pattern in the history of humankind. Today’s heresy may easily become tomorrow’s gratefully embraced orthodoxy…

Indeed, in light of the proliferation of modern communication through social media, with its inherent anonymity permitting the expression of even more ideas that we might disagree with either in form or in substance, it has become necessary for us to reconsider the nature of our freedom of expression and to examine whether our society is more likely to benefit from an extrapolation or from a further attenuation of this freedom.

According to the introduction to The Free Speech Century, a text edited by two of the leading First Amendment scholars in the US, “While vastly expanding the opportunities to participate in public discourse, contemporary means of communication have also arguably contributed to political polarization, foreign influence in our democracy, and the proliferation of ‘fake’ news.”

It is further suggested there that we shall need to interrogate “To what extent do these concerns pose new threats to our understanding of ‘the freedom of speech, and of the press’? To what extent do they call for serious reconsideration of some central doctrines and principles on which our current First Amendment [sc. freedom of expression] jurisprudence is based?”

I, likewise, pose this query here in the wake of the news item earlier this week where a young man was convicted of sending an electronic communication that was “menacing in character, intending to cause or reckless as to whether it caused annoyance inconvenience, distress or anxiety to the recipient or to any other person to whom he intends it or its contents to be communicated”. This conduct is criminalized by section 14 of the local Computer Misuse Act 2005. According to one newspaper report, the annoyance, inconvenience, distress and anxiety would be caused to the members of the Royal Barbados Police Force.

The matter was tried summarily in the Magistrate’s Court and the accused confessed to the offence anyway so of course the issue as to whether this provision disproportionately compromises the constitutional guarantee of freedom of expression was never broached.

However, I have long held the view that this specific criminalization of expression would not pass a test of strict scrutiny so as to be held constitutionally compatible. First, it appears to particularize electronic communications as being somehow more offensive than other modes. To my best knowledge, there is no equivalent offence for causing mere annoyance or inconvenience especially to others by ordinary oral communication. Should every opinion that might annoy us be made criminal? Or is this a necessarily incidental hazard of societal existence?

Moreover, the section does not stipulate that the annoyance, inconvenience, distress or anxiety produced must have been a reasonable response to the communication by the individual affected. A comment from the American Civil Liberties Union seems apposite-

Our Constitution protects hateful speech, yes — but on the theory that truly free speech means the best ideas will win out. We need [people] trained to really listen to ideas they hate — and respond with better ones.

I, too, agree that the message used by the young man in this case was obscene and distasteful, but strictly construed, he did no more than express an outrageous perverted desire without threatening to accomplish it personally. Ought a police officer of reasonable fortitude to have been annoyed, inconvenienced, distressed or made anxious by the communication? Ought the accused to be punished for his anti-social, perverted thoughts?

I dedicate this week’s column to the memory of my father who was called to higher service on Tuesday of last week at the age of 93. It was he who taught me to read and he was an avid fan of my weekly musings. Until he became too ill to do so, he patiently and lovingly collected every one of them. May his spirit travel home in safety and peace.

The Jeff Cumberbatch Column – Enhancing the Freedom of Democratic Expression

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One immediate consequence of the annihilation of the Democratic Labour Party in the last general election in May has been to create a vacuum in the populist democratic discourse that requires for its optimal existence the publication of an alternative view to the official dogma.

I am already aware that there exists what I called in a recent column, “a semblance of opposition” in the form of a Leader of the Opposition in the Lower House, and his two Senatorial appointments in the Upper Chamber but, apart from one member of this grouping, who I know for certain will not allow anyone to think for him on any issue, this opposition does not appear to enjoy as yet a sufficient degree of distance from the governing administration to be regarded as a consistent source of alternative views.

In any case, I am speaking of a more radical (in the true sense of that word) alternative point of view; one bred out of the instinctual populist analysis that would take each official political assertion with a grain of salt and synthesize it for accordance with what the commentator considers best for the country.

Granted, these are early days yet, and the governing Barbados Labour Party administration is still in its “honeymoon” period, and thereby entitled to some concession from the citizenry in respect of any errors of judgment that it may commit.

What ought not to happen, however, in a democracy is that this sentiment should result in any alternative view being considered as heretic and its proponent being instinctively deemed a pariah whose views do not deserve a hearing.

Already, I can sense that there are those who are uncomfortable with any criticism of this administration and more so, if that critique comes from a member of, or one considered to be a supporter of the outgone Democratic Labour Party [DLP] administration. Frequently, on the various social media, one encounters the expression of sentiments that suggest that any view critical of an initiative by the current administration is to be abhorred on the basis that on May 25 of this year, the electorate determined that there should be no opposition to the BLP government and moreover, that the DLP should have no further say in the affairs of state.

The first of these propositions runs counter to our traditional understanding of the democratic praxis and, as recent events have demonstrated, the framers of our Constitution never contemplated the occurrence of such a scenario. That it has eventuated may be owed to factors not immediately relevant to this discussion, but it is at least doubtful whether the result of the election unequivocally indicated the preference of the populace for a one-party state, where “no [other]damn dog barks”.

While the latter contention may be electorally true, at least at a parliamentary level, that rejection should be perceived rather as one qua DLP parliamentarian/candidate and not qua Barbadian citizen, so that even a member of that party that was rejected by his or her constituency should still retain the civic entitlement to air publicly his or her views on the prudential administration of the state. It would be unnecessarily churlish, un-Barbadian and undemocratic to believe otherwise.

In this connection, our Constitution does not expressly guarantee the right to freedom of political expression, as does section 4(e) of the Trinidad & Tobago Republican Constitution 1976 that declares the existence of the right “to join political parties and to express political views”. Rather, ours contents itself with a general right of freedom of expression which would doubtless also include the freedom to air political views, both in the narrower and broader senses of the word “political”.

Nonetheless, this freedom of expression is not unrestricted and is expressly made subject in section 21 (2)(a) to any law “that is reasonably required for the purpose of protecting the reputations, rights and freedoms of other persons…” There are some other express restrictions besides but it is principally upon the law that seeks to protect the reputations of other persons that I should wish to focus my essay.

There is a quaint myth among some Barbadians that our defamation laws are incontrovertibly “archaic”. This perception or rather misperception is owed to the fact that the type of imputations that pass unsanctioned in the US for example would cause the publisher to be mulct in substantial damages in this jurisdiction. In fine, this is owed to the fact that we do not enjoy the public figure defence that obtains in some jurisdictions there. According to this, the constitutional guarantees of freedom of speech and of the press required a rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his or her official conduct unless the claimant proves that the statement was made with actual malice, that is with knowledge that it was knowingly false or made with reckless disregard as to its falsity.

No such defence is expressly provided in our Defamation Act 1996, although that is not the fault of the drafters of that Act, since, even in the state of New York, the defence is a judicial, and not a statutory creation. It may thus be argued that given the form and nature of our constitutional right to free expression, one that pays due regard to the reputations of others, it should hamstring any similar judicial initiative here.

Owing to the need to meet an arranged deadline, I must end here for today. Next week, I propose to continue this discussion on the extent of our freedom of speech and its effect on our defamation laws and to introduce discussion of freedom of information that, I will submit, is a necessary corollary to an enhanced freedom of democratic expression.

Repeal Sedition Provision of CYBERCRIME BILL

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Submitted by the Caribbean Guyana Institute for Democracy (CGID)

BROOKLYN: Guyana’s APNU+AFC coalition government’s proposed Cybercrime Bill that is currently being considered by Parliament has been greeted with disapproval by the New York based Caribbean democracy watchdog group, the Caribbean Guyana Institute for Democracy (CGID). In an interview Tuesday with Nelson King of the Caribbean Media Corporation (CMC), the Institute’s President, Rickford Burke, a Guyanese, said he is astonished by the proposed legislation, which he described as “unconstitutional and an offensive infringement on free speech.”

Section 18 (1) (a) of the Bill makes it a crime of sedition punishable by five years in prison, if a person whether in or out of Guyana, “intentionally publishes, transmits or circulates by use of a computer system or any other means, a statement or words, either spoken or written, a text, video, image, sign, visible representation, or other thing, that brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in Guyana.”

Burke said this section of the proposed law is intended to “suppress criticism of the government and as such is repugnant to democratic norms of a free and open society.” Moreover, he blasted the international reach of the legislation as “repugnant to international law and a silly overreach outside of the jurisdiction of the Guyana government that is unenforceable and therefore bad law.”

He also said the Bill is an assault on the Caricom Charter of Civil Society to which Guyana is a signatory. The Charter was enacted in the Region on February 19, 1997 by regional Heads of Government in St. Johns Antigua. It binds Caricom Member States to the ideals of a free press, open democratic process and respect for civil, political, cultural, economic and other rights.

“This provision of the legislation is a breeding ground for despotism. CGID therefore calls on the government of Guyana to strike it from the Bill; or it will be an indelible black stain on the government which has a healthy record on good governance thus far,” the Institute’s President posited.

Burke said it is inconceivable and perplexing that the government has proposed legislation that severely undermines democracy, and which will inflict gaping, self-destructive political wounds; especially since its political leaders were champions of democracy when they were in opposition.

He asserted that he would expect such repressive legislation from the opposition People’s Progressive Party (PPP). He said that the PPP, while in government from 1992 to 2015, ran a brutally oppressive and ethnocratic regime that suppressed free speech and the rights of minorities while using the allegation of sedition to imprison several critics.

Burke said that although the PPP is now feigning innocence, its Members of Parliament made significant contributions to the construction of the abhorrent legislation during the Select Committee process in Parliament. He labeled the PPP’s subscription to the Bill as “disgraceful and unpatriotic.

The Jeff Cumberbatch Column–Non – litigious Resolution of Defamation Lawsuits

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Jeff Cumberbatch – Columnist, Deputy Dean of UWI, Law Faculty, Chairman of the FC

I had no intention of returning this soon to a discussion of the law relating to freedom of expression, even if indirectly as I propose to do today, after last week’s excursus on that topic and its contemporary broadening. However, some items in another section of the print media during the past week might conceivably have led to a woefully confused public on a topic that is of clear public interest import currently.

In my perceived role as a public scholar of law, I therefore thought it important for me to clarify the matter in the best way I could and to thereby provide some general learning on the matter.

On Tuesday, October 31, under the headline, “Money for Mia after lawsuit”, a section of the press other than the Barbados Advocate reported on page 5 of its edition the outcome of a defamation action filed by the Honourable Leader of Her Majesty’s Loyal Opposition, Ms Mia Mottley against the publishers of the online newspaper Barbados Today and its editor, Ms Kaymar Jordan, in respect of two articles published in the newspaper whose imputations are by now doubtless in the public domain and not of current relevance to this essay.

The report in the newspaper suggested that there was a hearing before a named High Court judge and that Ms Mottley’s eminent counsel, who were also identified by name, had “successfully argued that Ms Mottley was qualified to practice law in Barbados since December 1987”, the date of her admission to the local Bar.

Doubts as to the authenticity of this report began to surface almost immediately on a Whatsapp thread to which I subscribe, although owing to the sensitive political nature of the matter and the possible implications of one being mulct in damages through defamation by repetition, no details were given.

Nevertheless, on Friday last, in a letter to the Editor of the same newspaper, Mr C. Anthony Audain, attorney-at -law and one of those reported as appearing on behalf of the defendants in the matter, averred that in fact “there were no arguments before the court…” and that “a consent order was agreed between the parties and the actions were withdrawn”.

This would understandably have left readers and the general public nonplussed as to how a matter as serious as this could have been reported in such a horribly incorrect manner to the extent of inventing a court hearing with arguments advanced and all. However, that is a matter for the organ to address and no concern of mine, either immediate or at all. My present remit extends solely to helping the public to understand how it may be possible under Barbados law amicably to resolve a defamation action without a court trial and what might have happened in the instant case.

Barbados, in its Defamation Act 1996, does not expressly include it as one of the desiderata of the statute as does Jamaica, for instance, but both pieces of legislation include provision for the offer of amends that is intended, as the Jamaica Defamation Act 2013 states as one of the principal objects of its Act “to promote speedy and non-litigious methods of resolving disputes concerning the publication of defamatory matter…” Indeed, Part III of that statute is captioned “Resolution of Defamation Without Court Proceedings” and includes, in addition to the offer of amends (called there an offer to make amends), the apology in mitigation of damages.

The corresponding Barbados statute, the Defamation Act, Cap 199, also makes provision at sections 16 to 18 for the offer of amends. According to section 16 (1) –

A person who has published a statement alleged to be defamatory of another may, if he claims that he did not do so intentionally, make an offer of amends under this section.

The subsection further establishes a presumption of unintentional publication, while section 16 (2) provides for the circumstances in which a defamatory publication will be deemed to have been intentional.

In Barbados, as in Jamaica, the offer of amends contemplates three elements. First, an offer by the defendant “to publish or join in the publication of a suitable correction of the statement complained of and a sufficient apology to the party aggrieved; second, where copies of the statement have been distributed by or with the knowledge of the person making the offer, to take such steps as are reasonably practicable on his part for notifying persons to whom copies have been so distributed that the statement is alleged to be defamatory of the party aggrieved; and third, and perhaps most crucial, to pay compensation to the party aggrieved.

The procedural details for making the offer are set out in section 16 (4) –(7), but it is further stipulated in section 17 that on acceptance of the offer by the aggrieved party “no proceedings for defamation in respect of the publication concerned may be brought or continued by him against the person making the offer, but he is entitled to enforce the offer of amends…”

If there is any dispute as to the adequacy of the compensation to be paid, then the matter is referred to a judge for determination. If however, the offer is not duly accepted, then section 18 provides that the defendant may rely, if it so chooses, on the offer of amends by way of defence and, in any case, in mitigation of the damages that may be payable in respect of the defamation.

“A defendant in proceedings for defamation may rely in mitigation of damages on an offer of amends not relied on, or not successfully relied on as a defence.”

Of course, not having been privy to these confidential proceedings or, as it is more crudely put, not having a dog in that fight, I cannot assure the reading public that the above is precisely what occurred in this case, but I trust that it may now be appreciated that not every case of defamation needs be resolved by court action and that the local law makes adequate provision for amicable resolution through an offer of amends that is accepted by the putative claimant.

And Mr Audain’s letter would certainly comport with such a procedure, especially when he affirms, …[t] here could therefore have been no “winning” of any lawsuit as suggested in your article. There was no determination and/or adjudication upon any of the issues before the law court on that day or at all. There was no determination of any matter whether procedural or substantive. The parties themselves agreed on the manner of disposing of the court actions…” [Emphasis added]

The Jeff Cumberbatch Column – Calypso Censorship and the Culture of Free Expression.

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Jeff Cumberbatch – Columnist, Deputy Dean of UWI, Law Faculty, Chairman of the FC

A very few people only would dispute that the sung calypso, whether in a recorded or live performance, and whether in the genre of social commentary, “sweet soca”, party, or its most recent version, “bashment”, plays a significant role in the local Crop-Over Festival. Indeed, apart from the Kadooment Day street parade, the finals of the Pic o’ De Crop calypso competition is perhaps the most anticipated event over the final weekend. Moreover, the music may be heard from as early as May, which means that it pervades the entire festival, unlike the parade of the costumed bands that is, essentially, a one-off event.

Given the apparent primacy of this art form in the national festival, it is at least surprising that the local law regarding freedom of expression in respect of the calypso does not better protect its exposition. Much unlike our southern regional neighbor, Trinidad & Tobago, Barbados does not regard the expression of opinion in calypso as being immune from legal sanction, as those who have heard the lyrics of a Cro-Cro would doubtless affirm. Indeed, the matter has already been adjudicated in this jurisdiction.

or a Sugar Aloes

In Mirchandani et al v Barbados Rediffusion Service Ltd, where the defendant sought to introduce expert evidence of the Trinidad & Tobago practice as raising a qualified privilege applicable to the Barbadian scenario, Williams CJ would have none of it. He stated then, “In my view no privilege attaches to the publication of the calypsos and the defence of qualified privilege must fail and is struck out. “If any special protection is to be given in respect of the publication of calypsos, it should be done by statute as part of a comprehensive review of the law, and after due and appropriate consultation and balancing of the different interests.”

It is to be noted for present purposes that a privilege protects the publisher of a defamatory statement from liability and will exist where it is in the public interest that a person should be able to speak freely without fear of court action. It may be absolute or qualified. It is absolute, as in the case of words spoken in Parliament (but not outside) or in the course of court proceedings and is qualified where the defamatory imputation is made is made in pursuance of a legal, moral or social duty to a person or persons who have a corresponding interest in receiving it. The presence of this mutuality of interest between publisher and recipient is necessary and it is this form of privilege which comprised the basis of the common law defence of responsible journalism; where the House of Lords in Reynolds v Times Newspapers Ltd. (2001) recognized for the first time that media publications can be protected by a form of qualified privilege providing they satisfy the test of a public right to know and responsible journalism as formulated by ten non-exhaustive factors set out by Lord Nicholls. This judgment undoubtedly struck a blow for freedom of expression over the protection of reputation.

The defence has since been extended to cover other forms of publication besides those of the media, and has been rendered into statutory form in some jurisdictions, including Antigua and Barbuda, where section 22 of its Defamation Act 2015 protects a statement, whether of fact or opinion, that was made on a matter of public interest, and where the publisher or defendant reasonably believed it to be so. Of course, the qualified nature of this privilege means that it is liable to be nullified by malice on the part of the defendant, although in the common law defence malice would be presumed from the irresponsibility of the communication or the absence of a reasonable belief that the matter was in the public interest in its statutory form.

The analogous argument does not appear to have been put in the local case cited earlier and it is doubtful whether it would have succeed in any event. Our culture does not appear to value individual reputation as being less in the public interest than freedom of expression and any decision to the contrary, as Williams CJ intimated, was best left to Parliament as part of a law reform exercise in the circumstances.

The issue has once again come into sharp focus with the news last week that two local radio stations had “banned” airplay of two calypso compositions performed by the artist Sir Ruel, supposedly on the basis of legal advice that the lyrics or some of them cast defamatory imputations on an individual. Indeed, the legal advice obtained seemed to have differed since one radio station has banned both songs while the other has prohibited airplay for one only. It is not for me to comment on the validity of these opinions since I hold no brief, figurative or otherwise, in the matter for anyone concerned. And, in any case, I do not know the lyrics of the two songs well enough to recall the imputations they might have made.

The larger question that begs asking however, is when will our various media houses summon up enough fortitude to challenge the status quo of local defamation law that is far from the archaic description so frequently attributed to it by the uninitiated.

I recognize the constraints of this mode of action. It is far more prudent for a media house to maintain defamation insurance than it is to challenge a claimant’s action on some esoteric point of defamation law at perhaps even greater cost. More over, the sole judicial body that may deliver an authoritative ruling on the law in this jurisdiction is the Caribbean Court of Justice, an appeal to which body is a heady prospect for most.

There will be, of course those souls who perceive the partisan political element in every issue and who will wonder aloud whether the current prohibition might not have been effectuated in at least one instance because of the pointed anti-administration message of the lyrics. This would be, however to miss substantially my larger point of freedom of expression.

While it is true that the majority of regional cases on defamation from Antigua and Barbuda to Trinidad & Tobago implicate a politician as either claimant or defendant, the poignant issue in these cases is never a mere political one. Rather it is an issue of freedom of expression and the extent to which this may be exercised and trump individual reputation in the civic interest.

In one jurisdiction far more solicitous of the freedom of expression than most others, there is the “public figure defence”. Essentially, this holds that the constitutional guarantees of freedom of speech and of the press prohibit a public official from recovering damages for a defamatory imputation relating to his or her official conduct unless he or she proves that the statement was made with actual malice; that the maker of the statement knew that it was false or with reckless disregard to its falsity.

It is perhaps the odious comparison of local defamation law with this that engenders the populist view of the archaism of our law. However, for the fact that any significant change in this direction lies purely in the power of those most likely to be affected by it, the expansion of local freedom of expression is thus placed in the hands of the judiciary, as assisted by the lawyers and their perception of the common law.

Freedom of Expression in the Constitution of Barbados

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Submitted by Samantha Walker

Dear BU

I called VOB, after listening to the woes of a female caller who was in the midst of her story and the word “politicians” was mentioned.  The programme was immediately CUT from the air.  It was resumed with the knowledge that you had missed the most “important” part of a person’s opinion.

As a listener and citizen, I called Mr Ellis, at VOB, who explained the necessity for them to cut defamation out of the broadcast, to avoid being sued.  My professional opinion is, as a Counsellor…  “tailoring the person’s opinion to suit certain individuals”.  If open conversation is not had about the “citizens” problems, what is the  purpose of VOB and the society, as a whole.  This process divides the nation.   Divide and Rule.   We hear “pay taxes, where to, how to, when to” openly over the news, TV stations and media.  Yet we do not have the right to “freedom of speech”, in the 21st century.  Long given to citizens of the USA and the UK, who we supposedly follow in most cases but not when it concerns the citizens.

Do you have any idea how this can be moved forward so “we” can be given the rights that they report we already have.

Page 1 of the 2016 Human Rights Report, The Executive Summary and quote:

“Barbados is a multiparty parliamentary democracy.  In the 2013 national elections, voters re-elected Prime Minister Freundel Stuart of the Democratic Labour Party Observers considered the vote generally in accordance with international standards, despite allegations of small-scale vote buying.   (vote buying can sway a decision no matter how small).

“Civilian authorities maintained effective control over the security forces. The most serious human rights problems were unprofessional conduct by police and violence against women and children. (These are not the most serious, all human rights problems are serious,, what about corruption)

“The government took steps to investigate and prosecute officials who committed abuses.” (I haven’t seen enough prosecutions of officials, how can we change this or report to those who might be able to intervene?)

(2)  PM Stuart holds reparations discussions, took place on 3rd May 2017 and yet no feedback for the population.

PM Stuart holds reparations discussions

Strategies to further the region’s reparations agenda were the focus of discussion when Prime Minister Freundel …

How can we get our PM to update the nation on the above’?

Stuart,  is the Chairman of the Prime Ministerial Sub-Committee on Reparations for Native Genocide and Slavery, received a progress report on the reparations efforts, and suggested several approaches to advancing the region’s agenda…… (The people have a right to know what approaches the PM has suggested)

A citizen, tired of all the injustices

Regards

Does Mia Still Regard Call-in Programs and Blogs a Threat to Democracy?

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Mia Mottley, Leader of the Opposition

Mia Mottley, Leader of the Opposition

In 2006 the then Deputy Prime Minister of Barbados Mia Mottley made the following statement while addressing the opening of a week long conference of the Commonwealth Parliamentary Association’s Caribbean, Americas and Atlantic Region at Hilton Barbados.

POPULAR ELECTRONIC OUTLETS for citizens to air their views like call-in programmes and Internet blogs ought to have a “framework of accountability”…. “[Blogs] will marginalise our existence as parliaments and will cause disrespect, not just for the rule of law, but for the institutions that are required to keep our societies safe– Regulate call-in shows, says Mottley

At the time her comments were targeted (we suspect) mainly at the inactive Barbados Free Press blog. We admit the Barbados blogosphere has become more virulent(?) since Mottley’s remarks if we include all social media platforms. It is true many abuse social media, however -it has served to throw rocks at the establishment as a means to mobilize change by giving a voice to ordinary citizens.

It is important Mia Mottley -the prime minister in waiting- updates the nation on this matter. The rise of social media has served to empower ordinary people everywhere and we expect that Mia Mottley operating under her own steam has accepted social media for the value it adds to our democracy. Update us please.

See what just occurred in Tanzania!

tanzania-whistleblower-arrested

The Jeff Cumberbatch Column – Limitations on Freedoms

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Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

It should be notorious by now that no freedom is absolute, but that these may be constrained by, inter alia, the extent to which they may impinge on the recognized freedoms of others; by sundry public interests such as health, order, safety, defence or morality, among others; or, of course, to the extent that their exercise is already proscribed by law. Even so, the law requires a balancing of interests in this context, so that except for the last instance, the abridgement of a freedom is subject to the doctrine of proportionality- that such abridgement is “reasonably required” or, as some have put it, “reasonably and demonstrably justified in a free and democratic society”.

In this regard, first, the measure must be rationally connected to the objective sought to be achieved by it, in that it must not be merely arbitrary or based on irrelevant considerations. Second, the means employed to impair the freedom should do so to the minimum extent possible and, third, there must be a justifiable and proportionate relation between the effects of the measure and the achievement of the objective.

In recent days, there has been a plurality of claims, whether wittingly or unwittingly, made by some people that there has been, is, or is likely to be, an unjustifiable curtailment of some freedom to which they are entitled, either by statements made in the public domain or by proposed policy measures. Our present inquiry relates to whether these claims of purported infringement are indeed justifiable or whether they amount simply to illegitimate assertions of licence to do as the claimant pleases, without any let or hindrance whatsoever.

One of these claims that has been asserted relates indirectly to the rather tragic circumstance of the murder in Trinidad & Tobago of a young Japanese visitor to the recent Carnival festivities. Even before a motive for her killing or the exact cause of her death had been determined, the then Mayor of Port-of –Spain, Mr Raymond Tim Kee, opined, in a rather ill-chosen moment, that women specifically had a duty to ensure that they were not abused and proceeded to admonish them generally for their wanton vulgarity and lewdness exhibited during the festival.

It might have been bad enough had he stopped at this general level, even though the connection with the lady’s death was clear, but his Lordship proceeded to pinpoint the subject matter of his soliloquy –“…was there any evidence of resistance? Was it alcohol-controlled and therefore involuntary actions engaged in? It is not that she was hit by a truck, it is a matter that she was jumping up in a costume…”

The popular antipathy to these unfortunate comments eventually led to the Mayor’s resignation last week, a phenomenon that is itself worthy of further analysis in the larger context of limited freedoms being explored here. The more immediate issue, however, is that the Mayor directly challenged the Trinidadian woman’s traditional right to freedom of expression –her right to “play herself” at Carnival.

Given both the geographical and circumstantial context in which Mayor Tim Kee sought to proffer his controversial view, it may be argued in hindsight that he unwisely picked a battle he had to lose. And while it would be witless to contend that the near-nudity of some of the costumes “worn” by females during the festival should unfailingly provoke any man into an act of sexual violence, the more fundamental issue of whether there should be any restriction, other than the law of indecent exposure, on the freedom of the individual female to “play herself’” at carnival time, or whether there should be unlimited licence in this regard, was regrettably lost in the brouhaha.

It is an issue that we ourselves will eventually have to face locally, given the cultural penchant for mimicry. I fear, however, that with our intrinsic reluctance to confront thorny problems, it is one that may survive unresolved for some time yet, never mind those voices occasionally raised in obligatory protest.

Fingerprinting, sensitive personal information, and constitutional freedom

The announcement last week by the Chief Immigration Officer that from April1 there will be the fingerprinting of every person entering and leaving the island, has naturally raised the hackles of those who consider this to be an infringement of liberty, at least in respect of Barbadian citizens, even though none of the objectors I have heard so far has been careful to indicate precisely which freedom might be implicated by this measure of data collection.

Lay opinion might trend towards it being an unjustifiable invasion of privacy, but it should be noted that the express constitutionally guaranteed right to privacy in section 17 of the supreme law is itself substantially limited, both as to content and in the breadth of permitted restrictions.

Of course, there are those who see nothing wrong with the measure. Assistant Commissioner of Police Erwin Boyce sees it as a positive move and “important in responding to criminal threats”. So too do some tourism officials who regard it as an aspect of a changing world and, “given the rise of ISIS and other terrorist groups”, that a jurisdiction should put all measures in place to make sure that it is as safe a destination as possible, although some reservation was expressed as to its potential for further delays of travellers in immigration and customs especially at peak times.

For those who so often bemoan the absence of my personal view, I must state that while the proposal does not immediately offend the constitutional text, there is, nevertheless, the risk of this measure, if not carefully policed (no pun), infringing one or more of the eight fundamental principles of data protection that are held to govern the collection of personal data from individuals.

Among these are Notification of purpose (2) –that the data should be obtained for a specific purpose and should be used for no other purpose; No prolonged retention (5) – that the data must not be kept for no longer than is justifiably necessary; and Portability (8) –that the data subject’s personal information should not be transferred to any country outside of Barbados unless that jurisdiction provides a comparable level of protection for the rights of data subjects in the processing of personal data as obtains locally.

There is one hitch, however. Barbados has no data protection legislation in place, though a cognate Bill was in circulation about ten years ago. This leaves the citizen with little statutory support for objection to the measure currently. Any objection must therefore be based on what is considered to be fair and just.

We are therefore called upon once more to trust to the bona fides and goodwill of the authorities to safeguard what, in nations that “punch above their weight” and are among the freest of their kind, is a basic civic right. I do not get the distinct impression that this trust is in abundant supply.

The Age of Political Correctness

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Submitted by Charles Knighton

freespeechThere is no social justice without free speech. They are one and the same. James C. Wilson letter to the editor, Dec.13

Political correctness is poisoning discourse in America.

[…]
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The Jeff Cumberbatch Column – An Evolving Democracy (II)

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Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate since 2000 and BU commenter – see full bio.

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The Jeff Cumberbatch Column – An Evolving Democracy (I)

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Jeff Cumberbatch - New Chairman of the FTC

Jeff Cumberbatch – New Chairman of the FTC

BU shares the Jeff Cumberbatch Barbados Advocate column – Senior Lecturer in law at the University of the West Indies since 1983, a Columnist with the Barbados Advocate since 2000 and BU commenter – see full bio.

[…] Continue reading →

Jack Warner Matter: Another Blog Being Given the Squeeze

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Jack Warner BEFORE he resigned from FIFA

Jack Warner BEFORE he resigned from FIFA

BU stated in its recent blog when attacked by Ontario counsel for Barbados resident, Eugene Melnyk:

“BU will unhesitatingly side with any blog on which bully boy tactics are attempted, even if it is Barbados Free Press (BFP) – indeed, on the sole occasion that BU did take up cudgels on this issue – it was on behalf of BFP, believe it or not. Reciprocation is, of course, not anticipated.”

BU understands that such an attack has been made on BFP in relation to the FIFA and other issues involving Jack Warner and that BFP has been ordered to remove its reporting on Jack Warner by WordPress.

BU has also carried reporting on Jack Warner and therefore considers the instruction to BFP to remove its reporting to be completely out of order and has no problem with BFP providing the link to this blog to WordPress as being BU’s condemnation of their instructions and its support for BFP in these circumstances only.

Related Link: Eugene Melnyk Puts the Squeeze On Barbados Underground

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Social Media and Protecting the Right to Freedom of Expression by Ordinary People

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Submitted by William Skinner
Social Commentators Carl Moore and Peter Wickham have been critical of "the blogs"

Social Commentators Carl Moore and Peter Wickham have been critical of “the blogs”

Barbados Underground and all locally based blog operators should resist the attempts to silence them, by the so called guardians, of what is acceptable media and by extension acceptable journalism. The simple truth, is that the growth of what is called the new media, has given expression to those, who were once systematically barred from national discourse.

While I will never subscribe to the use of excessive vulgarity in any form, written or oral, I believe that this is being used as a red herring to censor the freedom of expression that blogs such as Barbados Underground are now in the vanguard of ensuring.

Barbados is steeped in intellectual snobbery and I suggest it pains those who always thought that they alone will be the chosen ones to see their names in print, pontificating on all matters, while the rest of the population, worship their superior academic and intellectual skills. They were entrenched as the fountains of all knowledge. That class status has now been forever discarded.

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Should The Enactment Of Transparency Legislation be a Priority?

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Owen Arthur, Leader of the opposition (l) Fruendel Stuart, Prime Minister (r)

To the independents who voted for the Democratic Labour Party (DLP) last election, it is evident that it has retreated from its promise to make enactment of transparency legislation a priority. Of equal concern to BU has been the reluctance by the Barbados Labour Party (BLP) to pressure the government to honour its promise. Civil society should be concerned that the BLP – the government in waiting – is committed to following through on proclaiming transparency legislation. There will be the obvious argument that the 2011 perception index released by Transparency International, Barbados achieved the highest ranking in the region of 7.8 out of 10.  Perhaps the two political parties might suggest in light of the #16 ranking out of 183 countries, anti corruption legislation is not a priority. Such responses can be dismissed by asking – why did both political parties see the need to include it as a deliverable in their last manifestos?

Listed on the Corruption Index for 2011  are the USA at 7.1 and India 3.1. Although at opposite ends of the index these two countries are regarded as economic power houses on the global stage. More interestingly, the two are regarded as the two biggest democracies in the world. To acquire government approval in India for the most mundane request one must overcome an institutionalized system of corruption. Last week two angry Indian farmers acted out their frustration by dumping two dozen snakes in a government tax office. It is interesting that in India the fight against corruption in government has tossed up Anna Hazare. His charismatic leadership has attracted millions of Indians to the movement which has forced the government to prioritized its anti-corruption policymaking agenda. It seems India deserves its rating of 3.1.

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Not So Fast George

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Submitted by Hamilton Hill

 

Clyde Mascoll - will he force his way into the Arthur's 30?

Having taken issue with the foregone article “Not Accurate Mr. Clarke” I beg the indulgence of the promoters of this site in an attempt to tell it as I think it is. While it is neither here nor there when it raised its ugly head, we are quite sure that disrepute found its way into the hive long before Mr. Clarke submitted for print his offering. He was warned about the journalistic imprudence of launching an attack on the leadership of the labour party.

As the writer chose to reference history in his piece so will I. Can it be that given the record as it stands Mr. Clarke stands to suffer the same fate as one Reudon Eversley who was tormented beyond belief for daring to take a similar stand? Is there anyone in Barbados that is willing to openly challenge the following? The present leader of the labour party was the most oppressive Prime Minister Barbados has ever known in relation to journalists and the practise of news  dissemination in our country. History tells that sordid tale.

Lets look at his invocation of Karl Marx’s pronouncement as it relates to Neville Clarke. Not only is such grounded in subjectivity but selective reasoning like a sore thumb sticks out at us. If objectivity is key to the base of journalism, can the writer say Branford? How about Price? So true is the old adage that spit in the air falls in our faces. Lets call a spade just that.

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