Editorial: The cybercrime of defamation

A report in yesterday’s [Saturday] edition of the Barbados Advocate informed of a change of heart by a defendant in St Vincent & the Grenadines who had previously pleaded guilty to four counts of libel by electronic communication against her own sister under the Cybercrime Act in that jurisdiction. She claimed that she had done so under duress by the investigating officer and an official investigation has been ordered into the matter.

The defendant in this case was the first person to be charged in St Vincent & the Grenadines with the offence, only recently created by the Cybercrime Act 2016. The relevant section 16 (2) reads as follows:

A person who uses a computer system to disseminate any information, statement or image, knowing the same to be false, and who –

1. (a) damages the reputation of another person; or

2. (b) subjects another person to public ridicule, contempt, hatred or embarrassment,
commits an offence.

According to the report, the law was passed amidst local, regional and international objection, including among other concerns, that it criminalises the truth. The maximum penalty on summary conviction is a fine of $50, 000 and two years imprisonment.

The quoted text above does not appear to corroborate the assertion that truth is criminalised, since an essential element of the offence is that the accused knows the information or statement to be false, a matter that should be established beyond reasonable doubt by the prosecution in a criminal trial.

The law does bring once more into sharp focus however the issue of the extent to which criminal defamation remains compatible with the freedom of expression guaranteed by the Constitution in a democratic society such as ours. Admittedly, this freedom is not absolute, and the Judicial Committee of Her Majesty’s Privy Council had stated in 2004 in a Grenadian case with reference to that precise issue, “Nor can the Board say that such a crime is not reasonably justifiable in a democratic society. Of course, some democratic societies get along without it. But that simply shows that its inclusion is not the hallmark of the criminal law of all such societies. In fact criminal libel, in one form or another, is to be found in the law of many democratic societies, such as England, Canada and Australia. It can accordingly be regarded as a justifiable part of the law of the democratic society in Grenada…”

History will record that shortly thereafter England itself repealed its law of criminal defamation as did Grenada, to be followed in part by Trinidad & Tobago (2009), Jamaica (2013) and Antigua & Barbuda (2015). Barbados chose to retain criminal defamation in its earlier (1996) reform of defamation law, but there appears to be a modern regional consensus that criminal defamation is to be regarded rather as a form of overkill to protect the reputations of individuals.

Nor should this be any different, in our view, because the alleged defamation materialises in the form of an Internet communication. It is true that the likely readership may be much more numerous than that for a printed publication in the relevant jurisdiction and that some people might take advantage of the anonymity provided by the Internet to publish scurrilous impuations about an individual.

However, we believe that the available civil remedy is sufficient unto the mischief and that the awesome power of the state need not be availed of in order to redress this undoubted wrong, least of all in a matter involving relatives. Insofar as the claimant might possess a reputation that might be impaired among those who access the damaging material, a civil remedy in damages should suffice.

Barbados Advocate

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Editorial: The cybercrime of defamation | Barbados Advocate

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