This is said to be the ‘silly season’ in politics as it is the period prior to a general election when prospective political candidates would ordinarily release manifestos, hold public meetings and otherwise campaign for voters to elect them on Election Day. It is also the season when the statements made by, and conduct of persons in public (and sometimes private) life, are examined and often criticized from the political platforms, on the Internet and in the media in general.
The Constitution of Anguilla embraces this right of persons resident in Anguilla to honestly and fearlessly criticize the utterances and conduct of persons in public life. However, freedom of expression is not an unrestricted right under our Constitution. The Constitution requires it to be exercised according to law. Under Anguilla law, every person is entitled to his good name and to the esteem in which he is held by others. The laws of defamation are an attempt by our lawmakers to balance the private right to protect one’s reputation with the right of the public to express views on matters of public interest. This week’s edition will focus on Defamation.
What is defamation?
Defamation is the publication of a statement about someone that (i) lowers him in the opinion of right-thinking members of the society; (ii) causes him to be shunned or avoided; or (iii) exposes him to hatred, contempt or ridicule. Put simply, it is to publish or spread reports about someone which could do them harm. Some examples are calling someone dishonest, lazy, incompetent, criminal, unfaithful or corrupt.
In order to be successful in an action for defamation, the Claimant (the person suing) must prove that:-
(i) the words used referred to him;
(ii) the words used are defamatory; and
(iii) they were published to at least one person other than the Claimant himself.
i. Reference to the Claimant – What if no person is named?
In most cases, the Claimant will be mentioned by his name. You might be wondering ‘If no person is named, but the Claimant alleges that persons who know him believes the publication refers to him, will he be able to bring a successful action’? The answer is maybe. The Claimant can also succeed even if he is not mentioned by name if he can show that:-
• he is mentioned by his initials or his nickname; or
• he is depicted in a cartoon, photograph or verbal description; or
• he is identified by his office or position.
For example, if someone were to publish an article in The Anguillian about a lazy lawyer who is always sleeping at court and with the cartoon (adjacent hereto) depicting the lawyer, the newspaper article is likely to be defamatory because persons reading The Anguillian will understand the article as referring to our Senior Partner, Mr. Keithley F.T. Lake.
ii. Words must be defamatory
As stated above, a statement is defamatory of the person of whom it is published if it tends to lower him in the opinion of right-thinking members of our society or exposes him to public hatred, contempt or ridicule or it causes him to be shunned or avoided. A person’s reputation is not confined only to his general character and standing. It also extends to his trade, business or profession, and words will be defamatory if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade, business or professional activity.
The Court in deciding if the particular words bear a defamatory meaning will first determine their natural and ordinary meaning. The Court in so doing will take into account not only the literal meaning of the words but also the inferences which right-thinking persons would draw from them in their context.
Innuendo
The words used may also have a secondary or extended meaning. This is known as an innuendo. Sometimes an article will look completely innocent to most people, but it may carry a connotation that is understood by some readers. For example, a statement that “Mr. Doe is a frequent visitor at Casa Bing” is perfectly innocent on its face, but it may be defamatory if it is published to persons who know the special fact that ‘Casa Bing’ is a brothel, for then the statement would carry the innuendo that Mr. Doe associates with prostitutes. The Court will also take into account any innuendos alleged by the Claimant.
iii. Words must be published
Finally, the Claimant must prove that the words of which he complains were ‘published’, that is, communicated by the Defendant to at least one person other than the Claimant himself. Publication to the Claimant alone is not actionable because the defamation laws are not there to protect him from hurt feelings of which only he is aware.
The words complained of do not have to be published in a newspaper or broadcast. They also do not need to be recorded or written down. Communication includes statements in books, magazines, and the world-wide-web. It also includes words spoken. Each communication of a defamatory statement is a separate publication in respect of which legal proceedings may be brought.
Internet service providers
An issue which has arisen in recent years concerns the extent to which Internet service providers (ISP), who typically allow subscribers access to mailing lists, newsgroups, chatrooms, web home pages and email facilities can be held liable for the republishing or repetition of defamatory material created by a subscriber. Recent decisions in other jurisdictions suggest that ISPs who take a laid back approach and refrain from exercising control and monitoring the content of messages posted on the Internet are likely to escape liability for defamation, while an ISP which conscientiously exercises control will be penalized in damages. The UK and Barbados have amended its Defamation Act to protect ISPs by providing them with statutory defences if they have no effective control over the maker of the statement.
This brings us next to the question of what defences are available to the Defendant accused of defamation. This will be addressed in our next installment.
THE LAW & YOU is a public legal education column written fortnightly by KEITHLEY LAKE & ASSOCIATES, Attorneys-at-Law, The Law Building in the Valley (tel:264-497-2069). The views expressed herein are not, and are not intended to be and should not be taken as, a substitute for legal advice. Please send your comments and questions to thelawandyou@anguilla-attorney.com.
