Musings: Broadening local freedom of expression
“Freedom of speech [expression] means freedom for those who you despise, and freedom to express the most despicable views. It also means that the government cannot pick and choose which expressions to authorise and which to prevent...” Alan Dershowitz, US Law professor
“As a former member of the US military, I took an oath to defend the constitution which includes freedom of expression. They aren’t kneeling for fun, it’s a protest…”- Guardian vox pop
Kneeling during the national anthem and flag burning shows utter disrespect for everything this country stands for, especially the military who fight and stand up for our right to protest and freedom of speech. -Guardian vox pop
As is trite, the Constitution of Barbados guarantees freedom of expression among some other rights and freedoms. According to section 20 (1)“Except with his own consent, no person shall be hindered in the enjoyment of his freedom of expression, and for the purposes of this section the said freedom includes the freedom to hold opinions without interference, freedom to receive ideas and information without interference, freedom to communicate ideas and information without interference and freedom from interference with his correspondence or other means of communication…”
The formulation of the local constitutional rights and freedoms, in consonance with many others in the region, also makes express insulation from constitutional inquiry a contravention of this right that is effected under the provision of any law that is reasonably required in the traditional public interests of defence, public safety, public order and public health, for the purposes of protecting the reputations, rights and freedoms of other persons or the private lives of persons concerned in legal proceedings, of preventing the disclosure of information received in confidence, of maintaining the authority and independence of the courts, of regulating the administration or technical operation of telephony, telegraphy, posts, wireless broadcasting, television or other means of communication or of regulating public exhibitions or public entertainments or that imposes restrictions upon public officers or members of a disciplined force.
I have taken care expressly to reproduce these qualifications to make the point that the state obligation in respect of not contravening the individual right to freedom of expression is limited by the plurality of the qualifications catalogued in the text of the supreme law, in this case occupying substantially more print inches than the right itself!
One aspect of these restrictions that has endured much lay censure over the years is the extent of the reasonableness of the requirement of the contravention through defamation law to protect the reputation of other persons. The charge is often levelled that our defamation law id variously “archaic”, “obsolescent”, “antediluvian” and essentially out-of-touch with the demands of a modern progressive democratic society.
As I have argued on more than a few occasions in this space previously, this woefully mistaken sentiment is owed to two factors mainly. First, there is the cultural aspect; that there are but a few who are willing to fight a defamation case brought against them all the way to the Caribbean Court of Justice by availing themselves of one the multiplicity of defences provided for in the law. This amounts to as form of self-censorship.
The prohibitive cost of doing so is frequently sacrificed on the altar of insurance against liability for defamation which most responsible publications doubtless carry; a reality that contributes little to the development of a reformist jurisprudence in this area of the law.
This negative portrayal of the local defamation law is also owed in part to an unfavourable comparison with the law in some US jurisdictions that, unlike ours, applies the concept of “the public figure defence” to actions brought by those who may be so categorised. Such an individual may pursue a remedy in defamation only where it is established that the publisher of the defamatory imputation at issue was malicious, in that either he or she knew that the imputation was false or was reckless as to its falsity.
In a region where the majority of defamation actions are either brought by or against political personalities who may be so classified, most public commentators would clearly welcome such a defence.
The “catch 22” situation however is that the identical individuals that would be primarily responsible for instituting a legislative change in that direction stand to be “harmed” most by its implementation. Nor do the regional courts seem keen on implementing this defence in their common law; at least three attempts to invoke it regionally have so far all fallen flat for various reasons.
Nonetheless, for what it may be worth, the Barbados Defamation Act 1996 has broadened the freedom of expression of the local commentator in some significant aspects, most particularly, however, in the area of defences which entails that the matter would have already been lodged in court.
Moreover, while a plain reading of the constitutional provision does not oblige the state positively to ensure the advantageous exercise of this freedom by individuals, technological developments and private initiative that have conduced to the existence of social media and an increase in public expression through popular blogging and the provision of avenues for comment by most online newspapers.
These modes of expression have the added advantage that they may be exercised anonymously, a reality that, according to some, may be favoured by most Barbadians, given the societal climate that prevailed during the period of slavery when it was probably suicidal to stand out from the crowd in any way. Mr Harry Russell in his weekly column in another section of the press recently adverted to this cultural trait. Anonymity therefore ensures that the contributor get his or her point across without drawing undue attention to themselves and risking social, political or economic sanction.
Of course, this opportunity for anonymity does not find favour with everyone, more especially when it is used as a cloak for scurrility and defamatory imputation. That may well be the price we all have to pay for a greater freedom of expression and indeed it may reveal more about the individual than the object of his or her calumny.
There is no doubt however; that these new avenues have served to broaden the exercise of the individual freedom of expression in Barbados, a phenomenon that arguably conduces to a more participatory and, hence, more effective democracy.