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.