Defamation – Platinum Legal

In the United States, there is a popular reality show called What Not To Wear. It seems, however, that a more pertinent show for our modern society would be, What Not To Say.

Traversing the world of expressing oneself whether by way of spoken or written speech can be a very tricky affair. We have certain constitutional guarantees and human rights; on the one hand there is freedom of mind and conscience which purports to give people the right to feel how they want to feel about any topic or situation. On the other hand, there is freedom of speech and expression and any free and democratic society must be organised in such a way that people are able to give expression to their thoughts whether considered favourable or unfavourable. This presents us with a delicate balancing act. What are the metrics to indicate when the delicate line between right and wrong has been crossed? How far is too far?

It would be phenomenal, if there was a list that had all the “to do(s)” on one side and the “not to do(s)” on the other. Maybe, in the emerging world of artificial intelligence this could be a reality in the future. Returning to the present reality, there are some legal principles and guidelines that have been set down and continue to evolve. This is where the lawyers get to put on their legal spectacles, reading and interpreting legislation and applying case law authorities to work out whether any particular speech and expression amounts to defamation.

Written words, whether in a newspaper, book, letter, email or on the Internet, are described as being in permanent form and fall under the classification of libel. Spoken words or gestures are treated as more temporary or transient in nature and are assigned to the category of slander. Undoubtedly, both are forms of defamation. It has been eloquently put by Kodilinye who stated that “libel is addressed to the eye, whilst slander is addressed to the ear”.

Naturally, statements will carry different weights and connotations and this in itself will vary from society to society and sometimes even from context to context. For example, to describe someone as being a very loud person may not carry a lot of weight but to say that the individual is a loud and aggressive person would carry different connotations.

In many situations, which are especially seen in the creative industries, music, films and so on, an indirect mode is used to make statements and references, and the Law of Defamation recognises these as innuendos. We have become familiar with this mode of lingo in many of our local calypsos over the years. Some memorable ones are Steel and Wood by Patrick Speedmaster Sealy, and Wuk Fuh Wuk by Colin Spencer.

Earlier this year in Trinidad and Tobago, former calypso monarch Weston Cro Cro Rawlins was restricted by court injunction from singing and performing only a sanitised version of his 2023 calypso, Another Sat Is Outside Again.

The learned judge, Justice Frank Seepersad stated that, “The court notes that the defendant’s song referenced the name ‘Inshan’, which was juxtaposed against the assertion that this individual sells stolen car parts in the Bamboo.” The judge went on to stipulate that “This court will not condone or accept any position which advances a narrative that social media comments or commentary by calypsonians is sacrosanct and that people should be free to say whatever they feel as they ‘speak their minds’ even if the content is divisive, derogatory, deceitful, dishonest or defamatory.”

Though injunctive relief is only the precursor to the full case, in granting the injunction in favour of the complainant, the judge’s pronouncements demonstrate the position that Cro Cro apparently went too far, which is clearly gleaned from the judge’s ruling that “Creative licence, however, cannot be used as a sword to engage in ill-informed or baseless attacks which can decimate an individual’s character or integrity.”

Vincentian calypsonian AlvinZion-I Dennie also met with controversy in June this year with his song

Raperman. Prime Minister, Dr Ralph Gonsalves has been quoted as indicating in a media interview that “the spirit of Carnival is in our people . . . the only thing which is marring it is fellas who want to use a calypso tent for the most base, most vulgar, defamatory, lying, false statements”. Zion-I has reportedly responded to the issue by stating that the name used in his song does not refer to “a particular person”.

It should be noted that the defendant lacking the intention to defame does not preclude the complainant from mounting a successful action against the defendant nor absolve him from liability. Section 16 of the Defamation Act Chapter 199 of the Laws of Barbados makes provision for the defendant to make an offer of amends, by offering to publish or join in the publication of a suitable correction of the statement complained of and a sufficient apology to the party aggrieved which may include compensation to the party aggrieved.

So, how far is too far? We would know the answer to this question if we are haunted by Justice Seepersad’s words that “We strive to live in a civilised space where freedom of expression must be balanced and must be engaged in a reasonable, fair and proportionate manner which ensures that the fundamental rights of others are not eviscerated.”

One Welches, Welches, St. Thomas, Barbados

Phone: (246) 537-4108

Email: team@platinumlegal.co