Criminal libel and freedom of speech 

Dear Editor,

The Court of Appeal recently gave a very interesting judgment on the issue of whether the crime of criminal libel in the Penal Code can exist alongside the fundamental right to free speech as guaranteed under Article 23 of the constitution.

In a unanimous judgment, Sir Michael Barnett, the court’s president, and Justice of Appeal Roy Jones and Madam Justice Bethell, concluded that the intentional libel provision in the Penal Code did not breach Article 23 of the constitution, which, in essence, provides for free speech.

The case was sent back to the magistrate’s court for the trial to continue, so I wish to steer clear of any suggestion on the guilt or innocence of the person who raised the constitutional challenge to the criminal libel provisions in our law. That remains a matter for the magistrate.

What I want to do briefly in this letter is focus on the issue of criminal libel itself and see whether it is unconstitutional in modern conditions in The Bahamas. As space is limited, forgive me if I don’t quote fully the provisions of Sections 315-318 of the Penal Code, which deals with negligent libel (315) and intentional libel (318).

Whoever is convicted of negligent libel is liable to imprisonment for six months, and whoever is convicted of intentional libel is liable to two years’ imprisonment.

A person is guilty of libel who, for example, prints, writes or paints any defamatory matter concerning another person, either negligently or with intent to defame that person.

The Penal Code further provides that “defamatory matter includes anything which imputes to a person any crime or misconduct in public office, or which is likely to injure him in his occupation, calling or office, or to expose him or her to general hatred, contempt or ridicule”.

Publishers of newspapers are obviously caught by the provisions if they print or publish any defamatory matter, and it is not necessary that a defamatory meaning should be directly or completely expressed. It is enough if “such meaning and its application to the person alleged to be defamed, can be collected either from the alleged libel itself or from any extrinsic circumstances…”

Criminal libel is still very much alive and well in our laws. There are times when editors and ordinary civilians who choose to publish defamatory material are called to account in court by way of a civil suit. But the law recognizes that there are times when a civil action is not enough to help a person restore his or her reputation after it has been destroyed by the widespread publication of defamatory stories.

This is particularly so in this age of lightning speed communication through the internet and social media. Therefore, there are times when the criminal law is invoked by persons who feel they have been libeled in that way.

This was also a point recognized in the Court of Appeal’s decision.

Sir Michael wrote: “…I wish to record that I do not share the view of Klein, J. (who heard this case in the Supreme Court) when he said that ‘I cannot leave this matter without observing that the offense of criminal libel does not sit happily in the edifice of a modern constitution’.

“We live in an era when social media permits the most false, scandalous and defamatory of allegations to be made and then distributed and published widely in a matter of minutes or, indeed, seconds. Where these allegations are calculated and intended to destroy the reputation of persons, the criminal law must be able to provide a sanction rather than leave a victim to a civil claim for damages, which may be worthless.”

Both courts had to consider whether, in essence, the provisions of the law providing for criminal libel could withstand a challenge that it was unconstitutional, in the sense that it was contrary to Article 23 of the constitution providing for free speech.

Both Mr. Justice Klein and the appeal justices held that there was no unconstitutionality, although both courts reached the same conclusion by different routes.

Sir Michael said that the position was made clear from the decision of the Privy Council in the 2004 case of Worme v. Commissioner of Police, out of Grenada. In that case, the editor of a newspaper was charged with criminal libel for publishing a defamatory story on the prime minister of Grenada.

In essence, the Privy Council had to decide whether section 10 of the constitution of Grenada, which guaranteed freedom of expression, was violated by section 252(2) of the Criminal Code of Grenada, basically the same issue which our courts were called upon to determine in this case.

In a very powerful and comprehensive judgment, the Privy Council held that there was no violation of the right to freedom of speech in Grenada, and that the retention of the law of criminal libel was still “reasonably required to protect people’s reputations and does not go further than is necessary to accomplish that objective”.

“The protection of good reputation is conducive to the public good,” their Lordships held.

“It is also in the public interest that the reputation of public figures should not be debased falsely. Their Lordships are therefore satisfied that the objective of an offense that catches those who attack a person’s reputation by accusing him, falsely, of crime or misconduct in public office is sufficiently important to justify limiting the right to freedom of expression.”

In the leading libel case of Reynolds v Times Newspapers Ltd, decided in 2001, the court made very potent observations, which newspapers, broadcasters and those who use social media should find a valuable guide:

“Reputation is an integral and important part of the dignity of the individual. It also forms the basis of many decisions in a democratic society, which are fundamental to its well-being: whom to employ or work for; whom to promote; whom to do business with or vote for.

“Once besmirched by an unfounded allegation in a national newspaper, a reputation can be damaged forever, especially if there is no opportunity to vindicate one’s reputation. When this happens, society, as well as the individual, is the loser.”

In the present case, Sir Michael further observed that there is “no basis for finding that the law of criminal libel in The Bahamas is any different from the law of criminal libel in Grenada. There is no basis for finding that the law of criminal libel as described by the Privy Council in Worme is any different in The Bahamas…”

Whatever one’s view of the state of the law as it relates to libel in The Bahamas, it is instructive to look at the law as it has evolved from its early days to see how it still occupies a central role in our democratic society.

In this connection, perhaps the best known example was one given by Lord Denning in “What next in the law” of the case of William Prynne in the year 1664. Prynne had written a pamphlet, which cast aspersions on Charles I and his queen.

“He was sentenced by Star Chamber (a special court) in 1634 to be imprisoned during life, to be fined 3,000 pounds, and to lose both his ears in the pillory. He was branded on the cheeks with the letters SL (seditious libeler). No wonder that the Long Parliament abolished the Star Chamber, and with it, its jurisdiction in libel cases.”

Mark Symonette-Rolle 

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